01a01638
11-15-2000
Phyllis A. Dudley, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Phyllis A. Dudley v. Department of the Army
01A01638
11-15-00
.
Phyllis A. Dudley,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A01638
Agency No. BPARFO9908J0110
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency 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.<1> The final agency decision was dated November
22, 1999. The appeal was postmarked December 17, 1999. Accordingly,
the appeal is timely (see 29 C.F.R. � 1614.402 (a)), and is accepted by
the Commission in accordance with 29 C.F.R. � 1614.405.
The issue on appeal is whether, for the reasons set forth below, the
agency properly dismissed complainant's complaint.
On August 9, 1999, complainant filed a complaint maintaining that she was
discriminated against on the bases of her race (African-American) and in
retaliation for engaging in prior EEO activity. Complainant stated that:
1) There was a continual pattern of reprisal that placed impediments
which prevented her from receiving equal treatment in the processing
of her EEO complaints. She stated that improperly dismissing her
complaints denied her a timely and unbiased process. She accused EEO
officers and management officials of engaging in activities to obstruct
the fair processing of her EEO complaints as supported by evidence that
was presented in a civil case involving another individual.
2) The EEO office, the agency, and management officials . . . acted
on behalf of a white female employee in the timely and unbiased filing
of her EEO complaint. Complainant stated that testimony and documents
presented at the trial, referenced above, confirmed that the EEO office,
agency and management officials assisted the white female employee in
successfully settling her EEO complaint against the Army on a reverse
discrimination claim. According to complainant, the same official(s)
that assisted the white female employee acted against her when she filed
an EEO complaint.
On November 22, 1999, the agency issued a final decision that
dismissed the complaint on the grounds that its subject matter concerned
complainant's dissatisfaction with the processing of a previously filed
complaint. This appeal followed.
Pursuant to 29 C.F.R. � 1614.107(a)(8), an agency may dismiss a claim
that alleges dissatisfaction with the processing of a previously filed
complaint. Here, the two above issues clearly outline complainant's
dissatisfaction with the processing of her prior complaints by various
officials. Accordingly, we find that the decision of the agency to
dismiss the present complaint was proper and it is AFFIRMED.<2>
On appeal, complainant argued, in pertinent part, that it was an error for
the agency to retroactively apply 29 C.F.R. � 1614.107(a)(8) in this case.
We disagree. On November 9, 1999, revised regulations governing the
EEOC's federal sector complaint process went into effect. The Commission
applied these regulations to all federal sector EEO complaints that were
pending, at any stage, in the administrative process. Consequently, the
agency was correct when it applied the revised regulations in deciding
complainant's case. See Pollaci v. Department of the Treasury, EEOC
Request No. 05980498, n.1, (November 17, 1999).<3>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__11-15-00____________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 5-25 - 26 (November 9, 1999) provides that:
If a complainant is dissatisfied with the processing of his/her pending
complaint, whether or not it alleges prohibited discrimination as a
basis for dissatisfaction, s/he should be referred to the agency official
responsible for the quality of complaints processing. Agency officials
should earnestly attempt to resolve dissatisfaction with the complaints
process as early and expeditiously as possible. The agency official
responsible for the quality of complaints processing must add a record of
the complainant's concerns and any actions the agency took to resolve the
concerns, to the complaint file maintained on the underlying complainant.
If no action was taken, the file must contain an explanation of the
agency's reason(s) for not taking any action.
3The regulations, as amended, may also be found at the Commission's
website at www.eeoc.gov.