Charlotte L. Hazelett, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 30, 2009
0120092896 (E.E.O.C. Dec. 30, 2009)

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