01a43920
03-04-2005
Susanna Montante, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Susanna Montante v. Department of Transportation
01A43920
03-04-05
.
Susanna Montante,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A43920
Agency No. DOT-6-04-6033
DECISION
Complainant filed a timely appeal with this Commission from the
agency's final decision dismissing her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. , Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. , and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. Complainant filed a complaint in
which she claimed that the agency discriminated against her on the bases
of color (dark complexion), national origin (Hispanic), sex (female),
age (59), disability (depression), and reprisal (prior EEO activity) when:
Despite repeated requests to perform Air Traffic labor relations work
dealing with the National Air Traffic Controller's Association (NATCA),
which produces the more complex work, complainant's supervisor continued
to refuse to give her the opportunity to do the complex work at her
grade level; and
The agency failed to correct an inequity in the pay and grades in the
Western Pacific Region among the staffs of Human Resources and the Lines
of Business.
Claim (1): The agency dismissed claim (1) on the grounds that
complainant had filed a civil action on an identical claim. See 29
C.F.R. � 1614.107(a)(3) ([the agency shall dismiss a complaint] that
was the basis of a civil action decided by a United States District
Court in which the complainant was a party). Complainant filed Civil
Action No. CV-99-13118 (Aux) in the United States District Court for the
Central District of California - Western Division, on December 14, 1999,
and amended it on October 1, 2001. In that civil action, complainant
alleged, inter alia, that in December 1998, the Human Resources Manager
had complainant removed from servicing the bargaining unit represented
by NATCA. The court entered summary judgment in favor of the agency on
May 28, 2002. In the EEO counselor's report, complainant clearly stated
that her manager had removed her from air traffic labor relations duties,
which is the same as the claim set forth in Civil Action No. CV-99-13118
(Aux). Under the doctrine of Res Judicata, the court's judgment in Civil
Action No. CV-99-13118 (Aux) precludes further litigation of that claim.
See Bezelik v. National Security Agency, EEOC Request No. 05A11104
(May 8, 2003).
Claim (2): Agencies are likewise required to dismiss complaints raising
claims not brought to the attention of an EEO counselor and are not
like or related to a matter that had been brought to the attention of an
EEO counselor. 29 C.F.R. � 1614.107(a)(2). A review of the counselor's
report indicates that complainant did not raise the pay and grade issue
with the EEO counselor, and that the pay and grade claim is neither like
nor related to any of the matters raised in claim (1). We therefore
find that the agency correctly dismissed claim(2).
Accordingly, the agency's decision to dismiss the instant complaint
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
____03-04-05______________
Date