01A03225_r
03-27-2002
Jacqueline Foreman, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Jacqueline Foreman v. Department of the Navy
01A03225
March 27, 2002
.
Jacqueline Foreman,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A03225
Agency No. 98-00183-003
Hearing No. 120-99-6404X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act, 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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405.
In her formal complaint, complainant alleged that she was the victim
of unlawful employment discrimination on the bases of race and age when:
She performed duties under an inaccurate position description, which
resulted in denying her the opportunity of being considered for an
accretion of duties/promotion to Medical Technologist, GS-09, parallel
with the other technologist in Chemistry;
Management reassigned another employee in the Laboratory Department as
a GS-09 Medical Technologist without inquiring if other employees were
eligible or qualified for the position; and
Management took two years to answer several of her verbal requests
regarding the possibility of converting her to a Medical Technologist
position.
On August 30, 1999, an Administrative Judge (AJ) issued a Notice
of Proposed Decision Without Hearing, wherein she determined that
no genuine issues of material facts were in dispute. In response,
complainant submitted a Pre-Hearing Statement on September 27, 1999, and
the agency submitted a Pre-Hearing Statement and a Motion for Findings
and Conclusions Without a Hearing on October 12, 1999.
Accordingly, on June 3, 2000 the AJ issued a decision, dismissing claims
1 and 3 for failure to state a claim.<1> Specifically, the AJ found
that in claim 1, complainant did not exhaust administrative remedies
regarding classification appeals by seeking desk audits for position
classification and by pursuing appeals to the Office of Personnel
Management. The AJ found that complainant similarly failed to exhaust
administrative remedies with regard to claim 3.
Regarding claim 2, the AJ found that complainant failed to establish a
prima facie case of discrimination on the bases of race and age because
she failed to demonstrate that similarly situated employees not within her
protected classes were treated differently under similar circumstances.
Moreover, the AJ found that a comparative employee noted by complainant
was not �similarly situated� as complainant because the other employee
was of a different grade; had a different job; and was merely reassigned,
and not promoted by the agency. The agency's final action implemented
the AJ's decision.
Claim 2
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not a discriminatory
intent existed is a factual finding. See Pullman-Standard v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that with respect to
claim 2, complainant has offered no evidence to establish a prima facie
case of race and age discrimination because the comparative employee
was not similarly situated to complainant. Consequently, we AFFIRM the
agency's final action with respect to claim 2.
Claims 1 and 3
The Commission determines that the AJ incorrectly found that claims
1 and 3 fail to state a claim. The Commission notes that claims 1 and
3 encompass a general claim that complainant performed duties under an
inaccurate position description, and experienced a delay by the agency
in answering complainant's inquiries about being promoted to a Medical
Technologist, GS-09, position. Accordingly, we find that claims 1 and
3 address a personal loss or harm regarding the terms, conditions, and
privileges of complainant's employment. See Hobson v. Department of the
Navy, EEOC Request No. 05891133 (March 2, 1990).
Therefore, after a careful review of the record and arguments and
evidence not specifically addressed in this decision, we AFFIRM the
agency's final action regarding claim 2. The Commission REVERSES the
final action regarding claims 1 and 3. Claims 1 and 3 are REMANDED for
further processing in accordance with the terms of the ORDER set below.
ORDER
The agency is ORDERED to resume processing of claims 1 and 3 from
the point where processing ceased. The agency shall acknowledge to
complainant that it has reinstated and resumed processing of claims 1
and 3.
A copy of the agency letter of acknowledgement 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
march 27, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
_______________________
1The Administrative Judge condensed the three claims into two claims:
(1) Complainant's position description was inaccurate, which denied
complainant the opportunity for an accretion of duties or promotion
to a Medical Technologist, and management took two years to answer
complainant's verbal requests to convert her to a Medical Technologist;
and (2) Complainant was not reassigned to the position of GS-09 Medical
Technologist. In this decision, the Commission will retain the original
three-claim identification that is contained in the final agency decision.