01A11322_r
06-03-2002
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