Tammye Jenkins, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionNov 18, 1999
01984243 (E.E.O.C. Nov. 18, 1999)

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:

____________________