01992125
09-30-1999
Olivia K. Johnson, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Olivia K. Johnson v. Department of Defense
01992125
September 30, 1999
Olivia K. Johnson, )
Appellant, )
) Appeal No. 01992125
v. ) Agency No. DFAS-CO-0000S-98-022
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Finance & )
Accounting Service), )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. and � 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C.� 791 et seq. The appeal is accepted
in accordance with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint because the claims were the same claims that
were pending before or had been previously decided by the agency.
BACKGROUND
Appellant filed a formal complaint on July 21, 1998, alleging
discrimination on the bases of race (African-American), color (Black),
physical disability (migraines, skin rashes, and ulcer), and reprisal
when:
On May 4, 1998, supervisor-1 gave appellant a special appraisal rating of
"met" and a "not rated" in two sections which appellant alleges resulted
in an overall rating of "fully successful."
In June 1998, during counseling, appellant was not extended any
opportunity to do "special projects" by supervisor-1.
On May 4, 20, and 29, 1998, appellant's supervisor-2 spoke to appellant in
a hostile voice regarding dissatisfaction with appellant's performance.
Appellant was not counseled about a declination of her performance prior
to the special appraisal of May 4, 1998, by supervisor-1.
On May 20, 1998, supervisor-2 confiscated a printed e-mail document.
Appellant was treated differently than other employees in assignment
of work tasks without a deadline by supervisor-2 (for example, on May
18, 1998, appellant was assigned the task of performing Project Service
Orders and on May 21, 1998, appellant was told to complete the assignment
by May 28, 1998).
On May 22, 1998, appellant was informed that she was referred to as
"the EEO Queen" behind her back and that she did not receive training
in April 1998 because supervisor-2 was dealing with a personnel problem
and insinuated that appellant was the problem.
On May 28, 1998, supervisor-2 displayed a hostile attitude toward
appellant and sent her home due to a violation of approval to work and
accrue credit hours.
On June 1, 1998, appellant's supervisor-2 displayed a hostile attitude
toward appellant and indicated that appellant is not able to accrue
credit hours on days that she mentors for the Village to Child Program
at the Ohio Dominican College, which is an approved DFAS-Columbus Center
activity.
From November 27, 1997, through May 4, 1998, supervisor-2 treated her
differently than other employees because supervisor-2 watched everything
appellant did. This resulted in co-workers not talking with appellant
which caused appellant to feel isolated.
On June 27, 1997, appellant requested that supervisor-1 modify the
lighting in appellant's work area.
From January 18, 1995, through June 27, 1997, supervisor-1 subjected
appellant to ridicule and reprimands in front of co-workers.
On December 4, 1997, supervisor-2 intervened in an inappropriate manner
and chastised appellant for her work style without cause when supervisor-2
called a client appellant was assigned to service.
On December 3, 1997, supervisor-2 eavesdropped on a conversation
appellant was having with an employee from another section and made
negative comments about the subject of the conversation.
In its FAD, the agency accepted allegations (1)- (10) for investigation
and dismissed allegations (11) - (14) of the complaint. The agency
found that appellant had raised the allegations in a prior EEO complaint
(Docket Number DFAS-CO-97-S-041). This prior complaint was concluded
with a settlement agreement dated December 31, 1997. Finding, that these
allegations were the same claims as those raised in the prior complaint,
the agency dismissed this portion of appellant's complaint pursuant to
29 C.F.R. �1614.107(a). This appeal followed.
ANALYSIS AND FINDINGS
The agency dismissed allegations (11)-(14) of this complaint stating that
these allegations were the same claims that were raised by appellant
in EEO Complaint Agency Docket Number DFAS-CO-97-S-041 and Informal
Complaint Number DFAS-CC-98-0008. The record does not contain the
complaint in DFAS-CO-97-S-041 nor other documents from DFAS-CO-97-S-041
defining the complaint in DFAS-CO-97-S-041. Therefore, the Commission
is unable to determine whether allegations (11) - (14) are identical
to the allegations raised in the previous complaint. The Commission
shall remand this matter so that the agency may supplement the record
with appropriate documentation regarding the prior complaints.
CONCLUSION
Accordingly, the decision of the agency is VACATED and REMANDED for
further processing in accordance with this decision and the proper
regulations.
ORDER
The agency is ORDERED to conduct an investigation to supplement the record
with copies of the complaint in DFAS-CO-97-S-041, final agency decision
issued in that complaint, and any other documents from DFAS-CO-97-S-041.
Thereafter, the agency shall determine whether to process or dismiss the
remanded allegations. 29 C.F.R. �1614.106 et seq. If the agency decides
to dismiss the allegations, it shall issue a new final agency decision.
The supplemental investigation, issuance of a notice of processing and/or
new final decision must be completed within thirty (30) calendar days
of the date this decision becomes final.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. If you file a civil action, YOU MUST NAME
AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY
HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME
AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
Sept. 30, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations