Satsuki S. Carrington, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJul 25, 2000
01991292 (E.E.O.C. Jul. 25, 2000)

01991292

07-25-2000

Satsuki S. Carrington, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Satsuki S. Carrington, )

Complainant, )

)

v. ) Appeal No. 01991292

) Agency No. AVKCFO9706H200

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

____________________________________)

DECISION

Upon review, the Commission finds that complainant's complaint was

improperly dismissed for, in effect, failure to state a claim pursuant

to 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(1)).<1> We are

not persuaded by the agency's arguments in response to complainant's

appeal to reach a contrary determination.

The final agency decision (FAD)<2> had defined complainant's complaint as

claiming that, for prohibited reasons,<3> complainant was discriminated

against by the Los Angeles (California) District of the Army Corps of

Engineers (�the Corps�) when her supervisor did not select her for a

GS-10 Construction Representative position. The FAD further defined,

in substance, the complaint as claiming that complainant was denied

the opportunity for a higher grade to a permanent GS-10 position, as

opposed to a temporary GS-10 position, which would effectively have made

unnecessary complainant's immediate retirement. The FAD indicated that

complainant had rejected a temporary position of GS-10 Construction

Representative, in Las Vegas, Nevada, because the agency would not

assure her that she would be returned to her original duty station<4>

at the completion of the temporary assignment.

The FAD dismissed complainant's complaint on the grounds that it lacked

jurisdiction. The FAD stated in pertinent part, that the agency could

not �dictate personnel selections to or make preselections for the Office

of Personnel Management (OPM) in the competitive arena.�

However, complainant contends on appeal, that �[t]he Resident Engineer

named in this complaint was the determining individual of the filling

of his allotted �slots' [i.e., positions allocated to the Los Angeles

District by OPM].� We find that the agency's argument in opposition

to complainant's appeal that, inter alia, �at no time was a permanent

GS-10 available for her to compete for,� improperly goes to the merits

of complainant's complaint.

The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1))

provides, in relevant part, that an agency shall dismiss a complaint

that fails to state a claim. An agency shall accept a complaint from

any aggrieved employee or applicant for employment who believes that he

or she has been discriminated against by that agency because of race,

color, religion, sex, national origin, age or disabling condition.

29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case

precedent has long defined an "aggrieved employee" as one who suffers a

present harm or loss with respect to a term, condition, or privilege of

employment for which there is a remedy. Diaz v. Department of the Air

Force, EEOC Request No. 05931049 (April 21, 1994).

The Commission finds, from its review of complainant's complaint and the

record as a whole, that the gravamen of the complainant is that certain

agency actions, including the agency's failure to promote her to a GS-10

position, forced her to retire earlier than she had intended. We note,

for example, that , according to the report of an attorney retained by

the agency's EEO Manager who was purportedly dissatisfied with a prior EEO

report, �[o]n January 17, 1997, her office (at Luke AFB Resident Office)

directed her reassignment to the Las Vegas Resident Office. The notice

cited �the downward trend in workload in the Military Construction

Program at the Luke Resident Office.' [Complainant] believes that this

Management Directed Reassignment (MDR) was a pretext to force her to take

a permanent position in Las Vegas at the GS-9 level or to retire.� In

a summary in his report, the attorney defined complainant's complaint

as claiming that, for prohibited reasons, complainant was: (1) forced

to retire on May 15, 1997; and (2) her supervisor delayed assignment of

GS-10 level duties to her GS-9 position until after complainant retired.

We find that complainant has set forth a claim for constructive

discharge reviewable by the Merit Systems Protection Board (MSPB).

See McKinney v. Department of Agriculture, EEOC Request No. 03980082

(December 4, 1998). However, in the present case, the Commission finds

that to direct the agency to process this matter as a mixed case complaint

or mixed case appeal, in accordance with the Commission's regulations

set forth at 64 Fed. Reg. 37,659 (1999) (hereinafter referred to and to

be codified as 29 C.F.R. � 1614.302) would further delay this matter

and would compound the agency's failure to provide complainant with

appropriate EEO counseling, when it was clear that, while she may not

have used the legal term �constructive discharge,� the facts complainant

alleged set forth such a claim that she should have been provided with

her right of election in accordance with 29 C.F.R. � 1614 302 (i.e.,

her right to file a mixed case complaint with the agency or a mixed case

appeal with MSPB but not both). Further, although complainant's formal EEO

complaint may, arguably, not have clearly raised a claim of constructive

discharge, it cannot be denied that the agency was on notice of such a

claim from the EEO Counselor's report, the agency's attorney's report,

and, ultimately, as expressed by the agency itself in the FAD.

Finally, we find that complainant's claim of constructive discharge is

sufficiently intertwined with her other claims for the Commission to

direct the agency to process her complaint as a non-mixed complaint

within the EEO process. See Bachman v. Department of the Air Force,

EEOC Request No. 05920014 (February 28, 1992).

Having reviewed the entire record, the arguments on appeal, including

those arguments not expressly addressed herein, and for the foregoing

reasons, the Commission hereby REVERSES the FAD and REMANDS complainant's

complaint for further processing consistent with this decision and

applicable regulations. The parties are advised that this decision is

not a decision on the merits of complainant's complaint. The agency is

hereby directed to comply with the Commission's ORDER set forth below.

ORDER (E0400)

The agency is ORDERED to process the remanded claims as defined herein

in accordance with 64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified

and hereinafter referred to as 29 C.F.R. � 1614.108). The agency shall

acknowledge to the complainant that it has received the remanded claims

within thirty (30) calendar days of the date this decision becomes final.

The agency shall issue to complainant a copy of the investigative file and

also shall notify complainant of the appropriate rights within one hundred

fifty (150) calendar days of the date this decision becomes final, unless

the matter is otherwise resolved prior to that time. If the complainant

requests a final decision without a hearing, the agency shall issue a

final decision within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant 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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant 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. �� 1614.407

and 1614.408. 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 complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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 WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. 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 (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:

July 25, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

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 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at www.eeoc.gov.

2The Commission notes that the FAD was signed by an �Acting EEO Officer.�

The Commission advises the agency that such an action is inconsistent with

the requirement that EEO personnel be neutral and impartial. The combining

of the EEO functions with those of an agency representative jeopardize

the integrity of an agency's EEO program and can adversely affect the

credibility of the EEO program in the eyes of an agency's employees. See,

e.g., the Commission's Equal Employment Opportunity Management Directive

for 29 C.F.R. Part 1614 (EE0-MD-110) (as revised, November 9, 1999) ,

Ch. 1, � VI (�EEO Officials Cannot Serve As Representatives�).

3One of the bases of alleged discrimination was reprisal. The FAD

dismissed complainant's assertion that she had been subjected to reprisal

when she rejected a temporary position. The FAD averred that there was

no record of prior EEO activity by complainant. However, we note that,

on appeal, complainant has withdrawn that basis of discrimination.

Thus, we need not address that aspect of the FAD.

4It appears that complainant was a GS-9 Civil Engineering Technician

permanently assigned to the Luke AFB Resident Office in Arizona. She

retired on May 15, 1997, after initiating EEO counseling and prior to

her filing her formal EEO complaint dated November 7, 1997. We note that

complainant's complaint was not entirely clear, referencing as it did,

for example, �28 pages of documentation.�