01986369_r
11-04-1999
Clara Eugene, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Clara Eugene, )
Appellant, )
)
v. ) Appeal No. 01986369
) Agency No. PA-98-003
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
______________________________)
DECISION
On August 24, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD)<1>, dated August 23, 1998, pertaining
to her complaint of unlawful employment discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq., and Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e 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 age (January 26, 1945), color (Black),
race (Black), and sex (female) when:
Since July 1997 to present, appellant has been assigned GS-11/12/13
duties, in addition to appellant's Transportation Assistant duties.
Specifically, appellant has been placed in a group with heavy
concentration of Transportation Movement work (over 50%) that was being
done by a GS-12 and GS-13. Yet, appellant, as a GS-6, has been made
responsible for this work.
On May 11, 1998, appellant received a Reduction in Force (RIF) letter.
On March 9, 1998, appellant received a Minimally Acceptable Performance
Appraisal.
Appellant's February 27, 1998, Performance Appraisal had appellant's
title and series listed incorrectly as Transportation Clerk, Office
Automation GS-2005-06.
On March 9, 1998, appellant received a letter of retirement, Voluntary
Early Retirement Authority (VERA), Offer of Voluntary Separation
Incentive Pay (VSIP).
Appellant is the only one within her team, at the same grade level, that
has an additional critical element in her Position Performance Plan,
dated June 2, 1997.
On October 24, 1997, appellant received an E-mail indicating that her
GS-11 co-worker was taking back duties appellant was performing.
The agency accepted allegations 1 and 2 for investigation. The agency
dismissed allegations 3 and 4 for mootness; allegation 5 for failure
to state a claim; and allegations 6 and 7 for untimely EEO contact.
Specifically, the agency noted that allegations 3 and 4 are moot
because appellant subsequently received a Performance Appraisal, dated
April 22, 1998, indicating "Fully Successful." The agency further
notes that appellant's title and series were changed to properly reflect
Transportation Assistant, GS-2102-06. Regarding allegation 5, the agency
found that appellant has not shown how she has suffered harm with respect
to the terms and conditions of her employment. Concerning allegations 6
and 7, the agency noted that appellant sought EEO counseling on April 10,
1998, which was beyond the 45-day limitation.
On appeal, appellant contends, with respect to allegations 3 and 4,
that she was able to get a better performance appraisal and her title and
series changed, solely because of her use of the grievance process. As to
allegation 5, appellant asserts that she suffered depression and stress,
which lead her to seek medical attention. Concerning allegation 6,
appellant argues that she did in fact approach an EEO Counselor within
45 days of the date she learned that other employees did not have an
additional critical element.
In response, the agency contends that allegations 3 and 4 should also
be dismissed because appellant previously filed a grievance on the
same matters. Furthermore, the agency proffers a copy of the bargaining
agreement, indicating that allegations of discrimination may be raised
in the grievance procedure or through the EEO process, but not both.
With respect to allegation 5, the agency emphasizes that appellant
was not harmed by the agency's letter. The agency notes that the
March 6, 1998 letter from Human Resources was simply an offer of early
retirement or resignation and acceptance was �a voluntary and personal
decision." Concerning allegation 6, the agency notes that it rescinded
its earlier dismissal of allegation 6, and that allegation was accepted
for investigation.<2> With regard to allegation 7, the agency contends
that appellant had knowledge of possible discrimination long before her
initial contact, on April 10, 1998. Specifically, the agency refers
to an e-mail dated October 28, 1997, that appellant sent the identified
GS-11 co-worker, discussing the co-worker's e-mail of October 24, 1997,
and indicating appellant's surprise over the co-worker's resumption
of duties. According to the agency, this e-mail clearly indicates that
appellant was aware of the alleged discriminatory incident in October
1997, more than 45 days prior to her EEO contact in April 1998.
EEOC Regulation 29 C.F.R. �1614.301(a) states that when a person is
employed by an agency subject to 5 U.S.C. �7121(d) and is covered by a
collective bargaining agreement that permits allegations of discrimination
to be raised in a negotiated grievance procedure, a person wishing to file
a complaint or grievance on a matter of alleged employment discrimination
must elect to raise the matter under either part 29 C.F.R. �1614 or the
negotiated grievance procedure, but not both. An aggrieved employee who
files a grievance with an agency whose negotiated agreement permits the
acceptance of grievances which allege discrimination may not thereafter
file a complaint on the same matter under this part 29 C.F.R. �1614
irrespective of whether the agency has informed the individual of the need
to elect or whether the grievance has raised an issue of discrimination.
As to allegations 3 and 4, appellant concedes that she sought relief
through the grievance process. Thus, appellant is barred from using
the EEO administrative process with respect to these allegations.
Accordingly, the agency's dismissal of allegations 3 and 4 is proper.<3>
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).
As to allegation 5, appellant is claiming harm, emanating from a letter
from the Human Resources Office of the agency. This letter simply
offers/solicits early retirement to interested employees. Appellant
has not shown how she suffered a harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
Consequently, the agency's dismissal of allegation 5 for failure to
state a claim is proper.
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.
As to allegation 7, the record clearly shows that appellant's initial
contact date of April 10, 1998, was beyond the 45-day limitation.
Appellant was aware of the alleged discriminatory action at the time
it occurred and questioned the propriety of that action based on her
October 28, 1997 e-mail. We find that appellant failed to present any
justification to warrant an extension of the applicable time limit.
Thus, the agency's dismissal of allegation 7 for untimeliness was proper.
CONCLUSION
The Commission AFFIRMS the agency's dismissal of allegations 3, 4, 5,
and 7 for the reasons set forth herein.
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:
November 4, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1The agency initially issued its
FAD on July 23, 1998; however, appellant subsequently requested
clarification of accepted issues. Consequently, the agency issued
a new FAD, which is the subject of the current appeal.
2In view of the agency's rescission of its dismissal of allegation 6,
we will not discuss that allegation further herein.
3Since we are affirming the agency's dismissal of allegations 3 and 4
on the grounds of filing of a prior grievance, we will not address the
agency's alternative grounds for dismissal, i.e., that allegations 3
and 4 are moot.