Phyllis A. Dudley, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 15, 2000
01a01638 (E.E.O.C. Nov. 15, 2000)

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.