01A13281_r
08-20-2002
Aleta D. Mills, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Aleta D. Mills v. Department of the Navy
01A13281
August 20, 2002
.
Aleta D. Mills,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A13281
Agency No. 01-44255-001
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated March 28, 2001, 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. In her complaint, complainant alleged that she
was subjected to discrimination on the bases of sex (female) and age
(D.O.B. 9/21/42) when:
On September 1, 2000, Person A informed her that a male employee may be
brought in to fill the GS-13, Supervisory Contract Specialist position
and complainant would be relieved of all supervisory responsibilities;
Statement to move from private office to open bay area;
Not being allowed to attend any management training that is required;
Setting complainant up to fail in her job over the last year; and
Lost wages due to not being accreted to the Supervisory Contract
Specialist, GS-13.
The agency dismissed issue (1) pursuant to the regulations set forth at
29 C.F.R. � 1614.107(a)(1) and 29 C.F.R. � 1614.107(a)(5). The agency
stated that as of November 9, 2000, the date of the final interview,
complainant was still assigned to the Supervisory Contract Specialist,
GS-12 position. The agency stated that subsequently the agency decided
to fill the Supervisory Contract Specialist, GS-13, competitively and
noted that complainant was referred as an applicant for the position.
Thus, the agency concluded that since complainant failed to show that she
suffered an employment harm with regard to this issue, the issue should
be dismissed. With regard to issues (2) and (3), the agency dismissed
these issues pursuant to 29 C.F.R. � 1614.107(a)(2), for failure to
bring these issues to the attention of the assigned counselor during the
informal process. The agency also stated that with regard to issue (2),
this issue was subsequently raised to the counselor and is presently
included as an issue the counselor is looking into for complainant.
The agency dismissed issue (4) pursuant to 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim. Finally, the agency dismissed issue (5)
pursuant to 29 C.F.R. � 1614.107(a)(1), and 29 C.F.R. � 1614.107(a)(5),
noting that a desk audit was performed and it was determined that
complainant was performing the work of a GS-12.
On appeal, with regard to issue (1), complainant acknowledges that after
her initial EEO Counselor contact, the agency reversed its decision to
bring in the male employee and began steps to fill the job competitively.
Complainant states that she was referred as an applicant but was never
given any serious consideration to fill the job. As an example,
complainant states that the only time she was interviewed for the
position was when she was returning from Temporary Additional Duty
(TAD). Complainant states that the interview occurred via cell phone
while she stood in an airport parking lot, trying to hear the questions.
Complainant argues the fact that the agency hired a female instead of
a male does not change the fact that they discriminated against her
when there was no serious consideration of her for the GS-13 position
and she was removed from the GS-12 position. With regard to issues
(2) and (3), complainant argues that these statements were brought to
the attention of the counselor through letters which she sent to the
counselor. In addition, complainant states that she was removed from
her office and placed into an open bay area, even though all of the
males in the office are assigned to private or semi-private offices.
Complainant further states that she was denied management classes after
October 1999. With regard to issue (4), complainant states that she was
set up to fail in her job as evidenced by the numerous agency actions
defined in her letters. Complainant claims that the harm is seen by the
agency's decision to bring in a male employee to fill the GS-13 position
and then by the agency's decision to competitively fill the job without
giving complainant serious consideration. Finally, with regard to
issue (5), complainant claims that she was performing the duties of the
Supervisory Contract Specialist at the GS-13 level from October 1, 1996,
through December 17, 2000, and lost wages due to not being accreted to
the GS-13 position. Complainant states that she requested a desk audit
at the beginning of her EEO complaint to determine if the Supervisory
Contract Specialist position should be a GS-12 or a GS-13; however, a
desk audit was not done until December 2000, after the GS-13 was hired.
Complainant states that the desk audit consisted of only a phone call.
The record contains a copy of a letter dated September 14, 2000, sent
to Person B, the EEO Officer for the agency's Engineering Field Activity
(EFA) Northwest, which serves as complainant's initial counselor contact.
In this letter, complainant stated that she was discriminated against
by the agency's decision to bring in a male employee from an overseas
job and place him into her job as Supervisory Contract Specialist
and the job being upgraded to a GS-13, without advertisement, or
allowing competition for the job. Complainant also alleged that since
coming to EFA Northwest in October 1999, she has been set up to fail
in her job and identified four incidents to illustrate her claim.
First, complainant states that on March 22, 2000, she was given only
twelve hours notice to provide a Plan of Action and Milestone (POA&M).
Complainant states that her supervisor was gone that day and she had to
work her normal nine hour day plus an additional five hours to generate
the necessary information. Second, complainant states that she was
asked to write the Pros and Cons for the POA&M of the Housing issues
and then EFA Northwest informed all team members, with the exception of
complainant, that they met the required dates. Complainant states that
she did meet the required dates. Third, complainant states that Person
C pulled her aside to complain about the way the office was organized
and complainant alleges this was done to �ax� her from her job. Fourth,
complainant complains that she was being placed in a Contract Specialist
position, after thirteen plus years as a Supervisory Contract Specialist.
In addition to her claims that she was discriminated against her when
it set her up to fail and when it decided to bring in a male employee
and place him into her job as Supervisory Contract Specialist and the
job being upgraded to a GS-13, complainant states that she was told that
her office and office furniture will go to the new person being hired.
Complainant states that she was told that as a female, a space will be
made for her in the open bay area with the other females in the office.
Upon review, we find that the agency improperly dismissed issue (1)
for failure to state a claim. In issue (1), complainant claims that
the agency informed her that it was hiring a male employee for a GS-13
Supervisory Contract Specialist position and that it would relieve her
of all supervisory responsibilities. Although the proposed hiring of
the identified male employee did not occur, the record reveals that the
position was thereafter competitively filled and that complainant was
not selected for the position and then was relieved of her supervisory
responsibilities. We note that on appeal complainant claims that
although her name was referred as an applicant for the GS-13 position
she was not given serious consideration by management for the position.
We note that when a complaint is filed on a proposed action and the
agency subsequently proceeds with the action, the action is considered
to have merged with the proposal. See Siegel v. Department of Veterans
Affairs, EEOC Request No. 05960568 (October 10, 1997). Thus, we find
that in alleging that the agency discriminated against her when she
was non-selected for the GS-13 Supervisory Contract Specialist position
complainant stated a cognizable claim. Further, we find that the agency
failed to show that this issue is moot.
With regard to issue (2), we find that the agency improperly dismissed
this issue for failure to raise it with an EEO Counselor. The record
reveals that complainant did raise the issue of being moved from her
private office to an open bay area with the EEO Office during informal
counseling. Specifically, in her initial letter dated September 14, 2000,
addressed to the EEO Officer for the agency's EFA office, complainant
identifies as one of her issues that she was told that her office and
office furniture will go to the new person hired and that as a female,
she was told that a space will be made for her in the open bay area with
the other females in the office. We note that on appeal, complainant
states that she was subsequently removed from her office and placed
in the open bay area, even though all of the males in the office are
assigned to private or semi-private offices. Thus, we find that issue
(2) was improperly dismissed.
With regard to issue (3), we find that the agency properly dismissed this
issue for failure to raise it with the EEO Counselor during the informal
process. Furthermore, we find that issue (3) is not like or related to
the other claims in the complaint. Complainant presented no evidence that
she raised the issue of being denied training during the informal process.
With regard to issue (4), we find that the agency properly dismissed
this issue for failure to state a claim. Other than alleging that
the agency set her up to fail in her job, in her formal complaint,
complainant failed to identify a specific harm or loss to a term,
condition, or privilege of employment.
With regard to issue (5), we find that the agency improperly dismissed
this issue. In alleging that she was discriminated against when she
was not accreted to the GS-13 Supervisory Contract Specialist position,
complainant has identified a harm to a term, condition, or privilege
of employment. Although complainant acknowledges that a desk audit was
completed, she alleges that the desk audit was improper and consisted
of only a phone call. Thus, we find that the agency failed to show that
interim relief has completely and irrevocably eradicated the effects of
the alleged discrimination and thus, improperly dismissed this issue.
Accordingly, the agency's decision to dismiss issues (3) and (4)
is AFFIRMED. The agency's decision to dismiss issues (1), (2), and
(5) is REVERSED and these issues are REMANDED for further processing in
accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims 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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
August 20, 2002
__________________
Date