01984243
11-18-1999
Tammye Jenkins, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Tammye Jenkins, )
Complainant, )
)
v. ) Appeal No. 01984243
) Agency No. DOT-2-98-2021
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
The Commission finds that the agency's April 10, 1998 decision dismissing
Complainant's complaint for failure to state a claim, is not proper
pursuant to the provisions of 29 C.F.R. �1614.107(a)(1).
The record shows that Complainant sought EEO counseling on June 20,
1997, alleging that she had been discriminated against on the bases
of race (African American), color (brown) and sex (female) when
the agency �prevented [her] prospects for selection to the GS/FG-14
level�, specifically when: (1) she was not selected for a Logistics
Management Specialist position, Announcement number 2-ALM-95-0001; (2)
she was not selected for the Management and Program Analyst position,
Announcement number 2-ALM-95-2150; (3) she was not selected for the
Logistics Management Specialist position, Announcement number 1-ALM-0914;
and, (4) she was not selected for the Logistics Management Specialist
position, Announcement number AWA-AFR-96(1)1894-1190. Complainant further
alleged that since 1994, she has been denied the opportunity of becoming
a FG-14. Complainant also claimed that the agency has engaged in �an
ongoing contemptuous work environment for African American females�.
Subsequently, Complainant filed a formal complaint of discrimination
raising these claims. As remedy, Complainant requested compensatory
damages, promotion to the FG-14 level retroactive to May 1995, retroactive
pay at the FG-14 level �since 1996" and attorney's fees.
The agency issued a final decision, identifying Complainant's complaint as
being comprised solely of the matter raised in (4). The agency dismissed
the complaint for failure to state a claim after finding that Complainant
had been selected for the position raised in allegation (4), on September
20, 1997, and therefore determining that she had not suffered an injury.
On appeal, Complainant argues that her complaint was improperly identified
by the agency, as it identified various non-selections that reflected
continual agency discrimination.
The record indeed reflects that Complainant not only alleged that she had
been discriminated against when she was not selected for the Logistics
Management Specialist position, Announcement number AWA-AFR-96(1)1894-1190
as identified in allegation (4); rather, her complaint also includes
three other alleged non-selections as well as her claim that since 1994,
the agency has engaged in a pattern of non-promotion for African American
females.
We find that even though Complainant may have been finally promoted on
September 20, 1997, three months after her initial EEO counselor contact
on June 20, 1997, that promotion, however, does not reflect that she
has failed to state a claim under EEOC Regulations. The Commission has
held that �as long as some injury is claimed, the agency cannot reject
the complaint on the basis of degree of injury�. Monagle v. USPS, EEOC
Appeal No. 01863087 (April 6, 1987). Accordingly, the agency's decision
dismissing the complaint was inappropriate and is hereby REVERSED.
The complaint is REMANDED for further processing in accordance with this
decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded claims (1 - 4) in accordance
with 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 (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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. 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 (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:
November 18, 1999
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:
____________________