Remell Luckett, Appellant,v.William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.

Equal Employment Opportunity CommissionNov 4, 1999
01992165 (E.E.O.C. Nov. 4, 1999)

01992165

11-04-1999

Remell Luckett, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.


Remell Luckett v. Department of Defense

01992165

November 4, 1999

Remell Luckett, )

Appellant, )

)

v. ) Appeal No. 01992165

) Agency No. 98DCMW05003

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Commissary Agency), )

Agency. )

______________________________)

DECISION

On January 22, 1999, appellant filed a timely appeal from the agency's

January 12, 1999 final decision (FAD), which partially dismissed

appellant's November 11, 1998 formal EEO complaint for alleging a

proposed action, pursuant to 29 C.F.R. �1614.107(e), in pertinent part.

We accept appellant's appeal pursuant to EEOC Order No. 960, as amended.

The FAD defined appellant's complaint as alleging, in relevant part,

that appellant (a GS-2091-03 Sales Store Checker) was discriminated

against on the basis of reprisal, in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq., when:

(a) on July 8, 1998, she was nonselected for the position of Lead Sales

Store Checker, GS-2091-04; and

(b) on August 13, 1998, she was given a Notice of Proposed Suspension

for eating cheese at her register.

The FAD accepted allegation (a) and dismissed allegation (b). The FAD

determined that "[a]n adverse action had not yet occurred; it was a

proposed action."

EEOC Regulation 29 C.F.R. �1614.107(e) provides that the agency shall

dismiss a complaint or a portion of a complaint that alleges that a

proposal to take a personnel action, or other preliminary step to taking

a personnel action, is discriminatory.

The Commission determines that in allegation (b), appellant alleged that

a proposed agency action was discriminatory. We find, moreover, that

appellant has not alleged that the matter contained in this allegation

is part of a pattern of harassment. Accordingly, the agency's decision

to dismiss allegation (b) was proper and is AFFIRMED.

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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

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. 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 (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:

11/04/1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations