Charolette A. Kahler-Trayler, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 23, 1999
01990688 (E.E.O.C. Sep. 23, 1999)

01990688

09-23-1999

Charolette A. Kahler-Trayler, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Charolette A. Kahler-Trayler v. Department of the Navy

01990688

September 23, 1999

Charolette A. Kahler-Trayler, )

Appellant, )

)

v. ) Appeal No. 01990688

) 01992366

Richard J. Danzig, ) Agency No. 98-0751A-001

Secretary, )

Department of the Navy, )

Agency. )

______________________________)

DECISION

On October 28, 1998, appellant filed a timely appeal with this Commission

from a September 28, 1998 final agency decision (FAD1), dismissing her

complaint for failure to state a claim. On January 30, 1999, appellant

timely filed an appeal from a December 31, 1998 final agency decision

(FAD2), dismissing her complaint for untimely counselor contact.

The two appeals were consolidated by the agency<1>, pursuant to 29

C.F.R. �1614.606. The Commission accepts the appellant's appeals in

accordance with EEOC Order No. 960, as amended.

EEOC Appeal No. 01990688

In a formal complaint, dated August 27, 1998, appellant alleged that she

was subjected to unlawful employment discrimination on the bases of sex

(female) and reprisal when:

On June 2, 1998, she was refused scheduling information regarding a

friend of hers;

On May 20, 1998 she overheard a military member state that she

(appellant) was being harassment to encourage her to quit;

On May 5, 1998, a military member was allowed to curse her;

Personnel, military and civilian, were permitted to harass her, on a

continuing basis, about trivial things such as burnt popcorn, lipstick

on her coffee cup and food left in the refrigerator.

The agency dismissed appellant's allegations for failure to state a claim,

pursuant to 29 C.F.R. �1614.107(a). FAD1 stated that appellant did not

allege that she had suffered personal harm. The alleged events did not

affect a term, condition, or privilege of her employment.

On appeal, appellant provides a list of alleged instances of harassment,

including the allegations in the complaint. No new contentions are

presented.

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).

The Commission has repeatedly found that remarks or comments unaccompanied

by a concrete agency action are not a direct and personal deprivation

sufficient to render an individual aggrieved for the purposes of

Title VII. See Backo v. U.S. Postal Service, EEOC Request No. 05960227

(June 10, 1996); Henry v. U.S. Postal Service, EEOC Request No. 05940695

(February 9, 1995).

In the instant case, allegation (a) involves appellant's friend.

The appellant has failed to show how the alleged incident caused her a

harm or loss. With regard to allegation (b), (c) and (d), these comments

or remarks were not accompanied by agency action. Allegations (a), (b),

(c) and (d) do not render appellant an "aggrieved employee." Accordingly,

we find that the agency properly dismissed appellant's complaint for

failure to state a claim. The agency's decision is AFFIRMED.

EEOC Appeal No. 01992366

On September 30, 1998 appellant contacted the EEO office regarding

allegations of discrimination based on sex (female), age (d.o.b. July 26,

1945) and reprisal. Informal efforts to resolve appellant's concerns were

unsuccessful. Accordingly, on November 16, 1998 appellant filed a formal

complaint alleging she was discriminated against when: in September 1997,

she was denied the opportunity to apply for a GS-6 Secretary position

even though she acted in that position from an unspecified date in 1996

through September 1997.

In FAD2 the agency dismissed the complaint for untimely counselor contact.

The agency stated that the alleged event occurred in September 1997, but

appellant waited almost a year to contact an EEO counselor on September

30, 1998. FAD2 also indicated that because appellant had previously

participated in the EEO process she was aware of the time limitations.

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.

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.

Here, appellant has made no argument, nor is there evidence to support

the view, that appellant was unaware of the applicable time limits

or did not reasonably suspect discrimination until forty-five days

before her counselor contact. The record reveals that the allegation

was included in the counselor's report regarding Appeal No. 01990688,

however appellant failed to include it in her earlier complaint.

Therefore, we find that appellant's September 30, 1998 contact was

untimely and there is no reason to extend the time limit. Accordingly,

the agency's decision dismissing the complaint is AFFIRMED.

For the reasons state above, both of the agency's decisions are AFFIRMED.

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:

09/23/1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1Following the dismissal of the complaints, the agency no longer had

jurisdiction to consolidate the appeals. However, the Commission finds

that consolidation is appropriate here.