01985057
09-07-1999
Barbara Jyachosky, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Barbara Jyachosky v. Department of the Navy
01985057
September 7, 1999
Barbara Jyachosky, )
Appellant, )
)
v. ) Appeal No. 01985057
) Agency No. DON 9800024004
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On June 13, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated May 5, 1998, pertaining to
her complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, 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 Commission accepts appellant's appeal in accordance with EEOC Order
No. 960, as amended.
In her complaint, appellant alleged that she was subjected to
discrimination on the bases of sex (female), national origin (not
specified), age (not specified), reprisal, and civilian status when:
1. On September 3, 1997, appellant received a level 4 rating for the
1996-1997 rating year;
2. On April 25, 1997, appellant's former supervisor, detailed appellant,
with the ultimate intention of permanently reassigning her, from her
position as Head, Public Affairs Branch (00D2) to Program Executive
Office for Surface Combatants/AEGIS Program (PEO SC/AP); and
3. On a continual basis, appellant's former supervisor created a hostile
work environment by discriminating against, and harassing and treating
appellant differently than her GM-14 male counterpart.
The agency dismissed allegation 1 for untimely EEO contact and
allegations 2 and 3 for stating the same claims that are pending before
the Commission. Specifically, the agency noted that appellant contacted
an EEO Counselor on October 22, 1997, for an alleged discriminatory
action which occurred on September 3, 1997. Also, the agency noted that
appellant must have or should have known about the 45-day counselor
contact requirement because she had filed a prior EEO complaint.
Concerning allegations 2 and 3, the agency found that appellant had filed
the identical claims in her prior EEO complaint, DON 97-00024-006.
The record indicates that appellant filed a prior complaint (Agency #
97-00024-006) on August 25, 1997. In that complaint, appellant alleged
(1) that her supervisor detailed her from her current position as Head,
Public Affairs Branch with the intention of permanently reassigning her
into a non-supervisory position as Program Executive Officer, Surface
Combatants/AEGIS Program; and (2) that her supervisor created a hostile
work environment by discriminating against, and harassing and treating
appellant differently than her male counterpart.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Initially, we note that civilian status is not a protected basis within
the confines of 29 C.F.R. �1614.103, and is therefore not redressable
within the EEO administrative process. Therefore, we find that the
basis of civilian status fails to state a claim within the purview of
the regulations.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). Thus, the time limitation is not triggered
until a complainant reasonably suspects discrimination, but before all
the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
It is well-settled that the denial of a promotion and the issuance of
an annual performance appraisal are incidents that have the degree of
permanence which should trigger an employee's duty to assert her rights.
See Anvari v. Department of Health and Human Services, EEOC Request
No. 05930157 (June 17, 1993); Jackson v. U.S. Air Force, EEOC Request
No. 05950780 (June 27, 1997).
Appellant received the rating at issue on September 3, 1997. Appellant
did not contact an EEO Counselor until October 22, 1997. Appellant failed
to comply with the 45-day limitation and has offered nothing to warrant
an extension. Therefore, the agency's dismissal of allegation 1 for
untimely EEO contact was proper.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
As to allegations 2 and 3, appellant filed identical claims in her prior
EEO complaint dated August 25, 1997, DON 97-00024-006. EEOC Appeal
No. 01983822 (May 26, 1999). Thus, the agency properly dismissed
these claims as stating the same claims as raised in appellant's prior
complaint.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of appellant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Sept. 7, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations