01A13609_r
07-05-2002
Ana Heres, Complainant, v. Stephen A. Perry, Administrator, General Services Administration, Agency.
Ana Heres v. General Services Administration
01A13609
July 5, 2002
.
Ana Heres,
Complainant,
v.
Stephen A. Perry,
Administrator,
General Services Administration,
Agency.
Appeal No. 01A13609
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) and (2), for failure
to state a claim and untimely EEO Counselor contact.
The EEO Counselor's Report shows that complainant sought EEO counseling on
September 28, 2000, claiming that she had been discriminated against on
the bases of national origin and sex when on August 2, 2000, she learned
that she had not been selected for a Federal Police Officer position,
GS-0083-06, vacancy announcement number 0020415. Complainant noted
that during the preceding three years, the agency had filled eighteen
vacancies but only one female applicant had been hired. Informal efforts
to resolve her concerns were unsuccessful.
Subsequently, complainant filed a formal complaint regarding her
non-selection for the Federal Police Officer position identified above.
By letter dated March 1, 2001, complainant's representative requested that
an additional claim be included in the complaint: whether complainant was
discriminated against on the bases of national origin, and sex when on
January 25, 2001, she was denied the opportunity to apply for a vacancy.
Complainant's representative made reference to a letter prepared by
complainant, dated February 26, 2001. Therein, complainant stated that
an agency Sergeant had advised complainant to contact an agency Chief,
Metropolitan Branch for New Jersey, regarding a possible vacancy for a
Federal Protective Service Officer position. Complainant stated that she
contacted the Chief who informed her that it was unnecessary to submit
any paperwork, because there was �no need to apply� as his branch was
�not hiring.�
On April 4, 2001, the agency issued a final decision dismissing both
claims. The agency dismissed the non-selection claim on the grounds of
untimely EEO Counselor contact after finding that complainant had failed
to seek counseling within 45 days of August 2, 2000, the date on which
she learned she had not been selected for the position in question.
The claim concerning the agency's refusal to allow her to apply for
vacancy on January 25, 2001, was dismissed for failure to state a claim.
Regarding complainant's claim that the agency denied her the opportunity
to apply for a vacancy, the Commission determines that complainant
has failed to show that she suffered a harm to the terms, conditions,
or privileges of her employment since no vacancy existed. Accordingly,
the claim concerning the January 25, 2001 denial of the opportunity to
apply for a vacancy was properly dismissed for failure to state a claim.
We also find that the claim concerning complainant's August 2, 2000
non-selection was properly dismissed on the grounds of untimely EEO
Counselor contact. The record discloses that the alleged discriminatory
event occurred on August 2, 2000, but that complainant did not initiate
contact with an EEO Counselor until September 28, 2000, which is beyond
the forty-five (45) day limitation period. On appeal, no persuasive
arguments or evidence have been presented to warrant an extension of
the time limit for initiating EEO contact.
Accordingly, the agency's final decision dismissing the complaint is
AFFIRMED.
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 5, 2002
__________________
Date