01a51202_r
04-08-2005
Stacy D. Bentley, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.
Stacy D. Bentley v. Department of Justice
01A51202
April 8, 2005
.
Stacy D. Bentley,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A51202
Agency No. P-2004-0229
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
On March 30, 2004, complainant contacted an EEO Counselor and alleged
that she was subjected to discrimination on the bases of sex (female)
and reprisal for prior EEO activity when she received two (2) adverse
action proposals. The first proposal for suspension was dated September
25, 2003, indicating that the proposed suspension was predicated upon two
charges: unprofessional conduct and providing false statement during the
investigation of the unprofessional conduct charge. The September 25,
2003 proposed suspension was rescinded on October 2, 2003.
On February 17, 2004, the agency issued complainant a notice of proposed
suspension, for the same two charges identified above. However, by
letter dated March 25, 2004, the agency informed complainant that the
charges identified in the proposed suspension of February 17, 2004,
were �sustained,� but that no disciplinary action would be taken against
complainant. The agency indicated that the �matter is now closed.�<1>
On March 30, 2004, complainant initiated EEO Counselor contact. After
informal efforts to resolve her concerns were unsuccessful, complainant
filed the instant formal complaint on June 17, 2004, claiming that she
was the victim of unlawful employment discrimination on the bases of
sex and in reprisal for prior protected activity.
On October 28, 2004, the agency issued a final decision. Therein,
the agency determined that complainant's complaint was comprised of the
following two claims:
1. Complainant received two adverse action proposals, one dated September
25, 2003, and a second on February 17, 2004.
2. Agency management did not consider the evidence in response to a
proposal letter, that agency management refused to provide complainant
with the rationale for the sustained charges against her, and that
management never subjected any other employee, especially male employees,
to a similar adverse/disciplinary process.
Regarding claim (1), the agency determined that the September 25, 2003
suspension proposal was rescinded by agency management. Regarding the
February 17, 2004 proposal, the agency found that management did not
impose any disciplinary action against complainant. The agency found
that �disciplinary action was proposed and later rescinded which renders
this claim moot since no action was ever taken against you.� Regarding
claim (2), the agency dismissed this matter for failure to state a claim.
The agency found that this claim constitutes a collateral attack on the
agency's internal affairs investigation.
As a preliminary matter, the Commission determines that contrary to
complainant's arguments on appeal, the claims at issue in the instant
complaint were properly identified by the agency.
The Commission next determines that claim (1) is more properly analyzed
in terms of whether it addresses a proposed agency action, pursuant to
29 C.F.R. � 1614.107(a)(5). Upon review, the Commission finds that the
matters raised in claim (1) address proposed agency actions (suspensions),
and there is no evidence supporting a finding that the proposed actions
were ever implemented.
Regarding claim (2), the Commission determines that this claim does not
address a personal loss or harm regarding a term, condition, or privilege
of complainant's employment.
Moreover, a review of the record reflects that the matters in question
in claims (1) and (2) are insufficient to support a claim of harassment.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
The agency's dismissal of claims (1) and (2) was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
April 8, 2005
__________________
Date
1The record reflects that the agency
interprets the term �sustained� in this context as a determination that
complainant committed the purposed incidents of misconduct, but that
no action would be taken against her; that the incidents would not be
raised again; and that they would not be used against complainant in
any fashion.