01a00219
03-09-2000
Barbara B. Simmons, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Contract Audit Agency), Agency.
Barbara B. Simmons, )
Complainant, )
)
v. ) Appeal No. 01A00219
) Agency No. E99-18
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Contract Audit Agency), )
Agency. )
____________________________________)
DECISION
The Commission finds that the agency's decision dated September 13,
1999 dismissing a portion of complainant's complaint for failing to
state a claim and the remaining portion of the complaint for stating
the same as previously raised by complainant, is proper pursuant to the
regulation set forth at 64 Fed. Reg. 37,644, 37656 (to be codified and
hereinafter cited as 29 C.F.R. � 1614.107(a)(1)).<1>
Complainant alleged that she was discriminated against when:
Complainant was requested to complete an Electronic Personnel Security
Questionnaire.
Management harassed complainant by denying her access to files created
by the agency and to a petition against her.
The agency dismissed claim 1 for failing to state a claim. The agency
found that claim 1 was filed with the wrong agency. The Commission finds
that complainant has failed to show how she was aggrieved in claim 1.
Therefore, we find that claim 1 was properly dismissed for failing to
state a claim. Because of our disposition we do not address whether
claim 1 was filed with the correct agency.
The agency dismissed claim 2 for stating the same claim as raised
by complainant in E99-09. The Commission agrees with the agency.
Complainant effectively argues that claim 2 in the instant complaint was
raised in E99-09, but that the issue was not properly investigated in the
prior complaint. Even if complainant were correct in this assertion,
she should raise such an issue in the context of the processing of her
prior complaint. For instance, if the complaint in E99-09 was before
an EEOC Administrative Judge, then she should inform the administrative
judge of any issues she feels were not appropriately investigated by
the agency. Therefore, we find that claim 2 was properly dismissed for
stating the same claim as previously raised by complainant.
The agency's decision dismissing the complaint is AFFIRMED.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 9, 2000
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:
_____________________ _________________________ Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.