01a04135
07-27-2000
Colamay L. Faxio, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Colamay L. Faxio v. Department of Veterans Affairs
01A04135
07-27-00
.
Colamay L. Faxio,
Complainant,
v.
Togo D. West, Jr.,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A04135
Agency No. 99-5936
DECISION
On May 12, 2000, Colamay L. Faxio (hereinafter referred to as complainant)
filed a timely appeal from the April 28, 2000, final decision of the
Department of Veterans Affairs (hereinafter referred to as the agency)
concerning 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, as amended, 29 U.S.C. � 621 et seq. The appeal is timely filed
(see 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.402(a)))<1> and is accepted in accordance
with 64 Fed. Reg. 37,644, 37,659 (to be codified as 29 C.F.R. � 1614.405).
For the reasons that follow, the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the agency properly
dismissed her complaint for failure to state a claim and for untimely
contact with an EEO counselor.
Complainant contacted an EEO counselor on November 18, 1999, and filed a
formal complaint on December 22, 1999, alleging reprisal but providing no
identification of agency actions or events. In response to the agency's
request for further information, complainant identified one event within
the 45-day period prior to her initial contact with an EEO counselor.
The event described an action by her former supervisor who opened the
conference room door after she had closed it, preferring not to look
at him.<2> The agency dismissed the complaint on the grounds that
complainant did not contact an EEO counselor in a timely manner.
The Commission's regulations require that a complainant bring his/her
complaint to the attention of an EEO counselor within 45 days of
an alleged discriminatory event or the effective date of an alleged
discriminatory personnel action, although this time limit may be extended
if an complainant shows that s/he did not know and reasonably should
not have known that the discriminatory matter occurred. 29 C.F.R. �
1614.105(a)(2). For the following reasons, we find that complainant
failed to state a claim and failed to contact an EEO counselor in a
timely manner.
First, we find that complainant is not aggrieved by the event of November
4, 1999. EEOC Regulation 64 Fed. Reg. 37,644, 37,656 (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.107(a)(1)) allows an
agency to dismiss a complaint that fails to state a claim within the
meaning of 29 C.F.R. � 1614.103. 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).
Here, the only event identified within the 45-day period prior to her
contact with an EEO counselor involves the closing and opening of the
conference room door. Although we recognize that complainant finds her
former supervisor unpleasant, neither she nor the record established
that she was aggrieved by this action. Further, because complainant has
not presented a viable claim that falls within the limitations period,
she cannot allege a continuing violation. To establish a continuing
violation, the complainant must show a series of related acts, one or
more of which falls within the limitations period. Vissing v. Nuclear
Regulatory Commission, EEOC Request No. 05890308 (June 13, 1989).
Complainant has offered no reason to extend the time period, and her prior
EEO activity indicates that she was aware of the time limitations period.
Accordingly, the agency's decision to dismiss the complaint for failure
to state a claim and untimely EEO contact was proper.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Acting Director
Office of Federal Operations
__07-27-00________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Complainant's interactions with the former supervisor was the subject
of a prior EEO complaint. See EEOC Appeal No. 01A03529, pending before
the Commission.