Barbara D. Thurman, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionJun 3, 2002
01A11322_r (E.E.O.C. Jun. 3, 2002)

01A11322_r

06-03-2002

Barbara D. Thurman, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.


Barbara D. Thurman v. Department of Transportation

01A11322

June 3, 2002

.

Barbara D. Thurman,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

Agency.

Appeal No. 01A11322

Agency No. DOT-6-00-6119

DECISION

The Commission finds that complainant's complaint was properly dismissed.

In her complaint, complainant alleged that she was subjected to

discrimination on the bases of sex, age, and in reprisal for prior

protected activity when:

In March 1999, complainant reported an incident of openly blatant,

sexual harassment made to another female worker. However, the incident

was not reported to the Accountability Board until late April or May 1999.

The agency failed to comply with the terms of a mediation contract

resolving the complaints of five female Special Agents (including

complainant).

Complainant was not sent to Special Agent Core Class or to work at the

Anchorage Civil Aviation Security Field Office (CASFO) at the same time

as another agent who was also selected for promotion in October 1996.

In November 1998, complainant's request for refresher training at CASFO

was denied.

On March 22, 1999, complainant's supervisor sent a new, younger agent to

work in the Field Office where complainant's new position was supposed

to be.

Complainant's supervisor did nothing to facilitate the move to the CASFO

and complainant had no opportunity to work at the CASFO until June 1999.

In spring 1999, complainant's supervisor announced that a younger female

agent was the only FG-1801-12 who qualified for the Upgrade/Promotion

to the new FG-1801-13 Upgrade, although complainant qualified the exact

same date as the younger agent.

On October 10, 1999, the younger co-worker was promoted to FG-1801-13

journey level, while complainant was not.

On January 20, 2000, complainant learned that an agency official who was

controverting her Office of Workers' Compensation Programs (OWCP) claim,

had sent false information to the OWCP, which resulted in the denial of

complainant's OWCP claim.

On January 28, 2000, complainant received a memorandum that she would

be officially reassigned to the position of Criminal Investigator,

GS-1811-13. This action was later canceled.

On January 31, 2000, complainant's supervisor handed her an envelope

while complainant was on the telephone, and stated loudly, "Here's your

Reassignment Memo; it's effective February 13th and that's that!"

Complainant has received no response to her Freedom of Information Act

(FOIA) request of July 17, 2000. On September 12, 2000, the agency

responded to her FOIA request dated August 16, 2000 by stating that the

agency has "no records" responsive to her request.

The agency dismissed claims 1 - 11 of the complaint for untimely EEO

Counselor contact. The record shows that complainant contacted an

EEO Counselor on June 20, 2000. There are no incidents in claims 1 -

11 that occurred 45 days or less prior to June 20, 2000. Therefore,

we find that the agency's dismissal of claims 1 - 11 for untimely EEO

Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2) was proper.

Regarding claim 12, we note the Commission has held that it does not

have jurisdiction over the processing of FOIA requests. Instead, persons

having a dispute regarding such requests should bring any appeals about

the processing of his or her FOIA requests under the appropriate FOIA

regulations. Gaines v. Department of the Navy, EEOC Request No. 05970386

(June 13, 1997). Therefore, we find that the agency's dismissal of claim

12 for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1)

was proper.

The agency's final decision dismissing complainant's 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

June 3, 2002

__________________

Date