0120092896
12-30-2009
Charlotte L. Hazelett, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Charlotte L. Hazelett,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120092896
Agency No. ARCEHWV09MAR01210
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision, dated June 2, 2009, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), 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. Upon review, the Commission finds that complainant's
complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a).
During the relevant period, complainant worked as a Hydrologic Technician
at a West Virginia facility of the agency. Complainant filed a formal
complaint alleging that the agency discriminated against her on the bases
of sex (female) and age (over 40) when (a) in 2006, a manager officially
assigned complainant additional duties and responsibilities without
appropriately compensating or progressively promoting her and (b) in June
2008, managers continued compensation discrimination by failing to review
common core duties and responsibilities of modelers (comparators) although
complainant asked them to do so. Further, complainant alleged that
the agency retaliated against her for prior EEO activity and opposition
activity when (c) it failed to promote equally, applied classification
reviews and standards in a discriminatory manner, threatened possible
downgrading, provided negative references unnecessarily, and increased
review of her daily work performance. Complainant alleged that persons
outside of her protected classes received more compensation when
performing identical or interchangeable duties.
In its June 2 final decision, the agency dismissed complainant's complaint
pursuant to 29 C.F.R. �� 1614.107(a)(1), (2) & (3), for untimely EEO
Counselor contact, failure to state a claim, and raising a matter that
was the basis of a civil action in a U.S. District Court. The agency
dismissed (a) - (c) for untimely EEO contact, (b) for failure to state
a claim, and (a) and (c) for raising a matter that was the basis of
and adjudicated in a civil action. The agency stated that complainant
rehashed the same arguments raised in civil litigation 3:04-cv-00098. 1
The instant appeal from complainant followed. On appeal, complainant
sought to amend her complaint to add "offensive and discriminatory
remarks directly related to age and sex made by the [agency] Human
Resources (HR) Officer [(HRO)]." Complainant included an August 2009
email to all employees in which HRO referred to a new staff member as
"old." She asked that the allegation serve as support for her claim if
it cannot be an amendment.
The record discloses that, on February 6, 2004, complainant filed
a civil action (identified as Civil Action No. 3:04-cv-00098) in the
United States District Court for the Southern District of West Virginia.
The record shows further that the claim and incidents raised therein are
the same as those raised in the instant complaint under (a) and (c). The
regulation found at 29 C.F.R. � 1614.409 provides that the filing of
a civil action "shall terminate Commission processing of the appeal."
Here, complainant filed a civil action and received a dismissal prior
to her appeal. Commission regulations mandate dismissal of the EEO
complaint under these circumstances so as to prevent a complainant
from simultaneously pursuing both administrative and judicial remedies
on the same matters, wasting resources, and creating the potential
for inconsistent or conflicting decisions, and in order to grant due
deference to the authority of the federal district court. See Stromgren
v. Dep't of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990);
Sandy v. Dep't of Justice, EEOC Appeal No. 01893513 (October 19, 1989);
Kotwitz v. U.S. Postal Service, EEOC Request No. 05880114 (October 25,
1988).
Further, as to (b), we find that complainant fails to show that she
suffered harm or loss with respect to a term, condition or privilege
of employment for which there is a remedy. See Diaz v. Dep't of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). In addition,
we find that complainant's amendment, as alleged, is not sufficiently
severe or pervasive as to alter the conditions of her employment.
See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
We find it unnecessary to address the agency's alternate bases of
dismissal and AFFIRM the final agency decision dismissing the instant
complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 30, 2009
__________________
Date
1 On January 21, 2004, complainant filed a civil action in the United
States District Court for the Southern District of West Virginia.
The action was docketed as 3:04 -cv-00053 and followed the denial of
Hazelett v. Dep't of the Army, EEOC Request No. 05A31221, regarding a
lower performance appraisal, inequitable performance award, withholding
of recognition for higher graded work, and reprisal for association with
a racially-oriented group. The Court granted the agency's motion for
summary judgment and dismissed the action on September 27, 2007.
On February 6, 2004, complainant filed a civil action in the United
States District Court for the Southern District of West Virginia.
The action was docketed as 3:04-cv-00098 and alleged that the agency
paid male employees higher wages for the same work with the same skill,
effort and responsibilities as complainant. The matter was dismissed
on December 21, 2007.
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0120092896
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092896