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.�