Cynthia A. Bailey, Complainant,v.Hillary Rodham Clinton, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionJul 22, 2009
0120091347 (E.E.O.C. Jul. 22, 2009)

0120091347

07-22-2009

Cynthia A. Bailey, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.


Cynthia A. Bailey,

Complainant,

v.

Hillary Rodham Clinton,

Secretary,

Department of State,

Agency.

Appeal No. 0120091347

Agency No. DOSF03209

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision (FAD) dated January 27, 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.

The FAD defined complainant's complaint as alleging she was subjected

to discrimination on the basis of sex (female) when:

1. on October 10, 2007, her alternate contractor officer representative

(ACOR) duties were removed;

2. in 2007, she was unofficially demoted from a division level supervisor

to a branch level supervisor;

3. in 2007, she was denied the opportunity to act in a vacant division

level position; and

4. on November 20, 2008 she learned her Privacy Act rights were violated

when she was informed a copy of her "work requirements" [Civil Service

Performance Plan-Form DS-7644] which contained personally identifiable

information was shown to others in an attempt to verify if her signature

was authentic.1

The FAD dismissed claims 1 through 3 for failure to timely contact an

EEO counselor. Complainant contacted an EEO counselor on December 4,

2008, which the FAD found was beyond the 45 calendar day time limit to

do so. 29 C.F.R. � 1614.105(a)(1) and .107(a)(2). The FAD dismissed

claim 4 for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).

Citing Commission precedent, it reasoned that claiming a violation of

the Privacy Act fails to state a claim under EEO statutes.

On appeal, complainant writes that the FAD mischaracterized claim 4.

She writes that while she felt her privacy rights were violated, she also

contended that on November 19, 2008, she received via email a spreadsheet

that wrongly listed as a branch rather than a division employee.

She writes that this discrimination has been occurring since 2007,

and that she is being supervised by a GS-12 employee2 even though she

is a GS-13. She argues that she timely initiated contact with an EEO

counselor after the email was sent. The same day the email was sent,

complainant asked for a copy of her Civil Service Performance Plan-Form

DS-7644, and it reflected her organizational status as a branch employee

and complainant stated her signature thereon was inauthentic.3 She

claimed that when she checked with human resources in 2007, she was

told she was a division employee. Complainant on appeal submits the

summary of a statement by the Division Director by the EEO counselor.

The summary indicates that the project complainant was working on was

moved to the branch level, and hence she was detailed to work there.

Complainant does not deny the information in her performance plan that

her job was largely to work on this project, and her complaint indicates

that after the project started pursuant to an August 2004 Presidential

Directive, she was assigned to it. On appeal, complainant writes that

she delayed contacting the EEO office because she feared reprisal.

An aggrieved person must seek EEO counseling within 45 days of the date

of the alleged discriminatory action, or in the case of a personnel

action, within 45 days of the effective date of the action. 29 C.F.R. �

1614.105(a)(1) & .107(a)(2). Under 29 C.F.R. � 1614.105(a)(2), an

agency or the Commission shall extend the 45 day time limit to initiate

EEO counseling for reasons considered sufficient by the agency or the

Commission. Claims 1, 2 and 3 were untimely counseled for the reason

found in the FAD. Although complainant indicates that she feared reprisal

if she pursued an EEO claim, the Commission has repeatedly held that

mere fear of reprisal is an insufficient justification for extending

the time limitation for contacting an EEO Counselor. See e.g., Duncan

v. Department of Veterans Affairs, EEOC Request No. 05970315 (July 10,

1998).

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint 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,

.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).

We agree with the finding in the FAD that the alleged Privacy Act

violation fails to state a claim under EEO statutes. Bucci v. Department

of Education, EEOC Request Nos. 05980289, 0598020290, and 05980291

(April 12, 1989). Complainant also claimed that the disclosure violated

her privacy and agency regulations. To the extent this is not covered

by her Privacy Act claim, we find it fails to state a claim of harm.

While complainant was troubled by the alleged disclosure, she has failed

to show the disclosure was of sufficient severity to rise to the level

of a justiciable Title VII claim.

We agree with complainant's argument that she alleged in her complaint

that on November 19, 2008, she received and learned of documentation

identifying her as a branch employee rather than a division employee.

We find that the recognition in a spreadsheet and in complainant's

performance plan of her previous de facto movement with her program

to the branch level fails to state a claim of harm. While complainant

claims the movement precluded her from career advancement, she does not

explain why this is the case, and it is not apparent from the record.

The FAD is affirmed.

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

July 22, 2009__________________

Date

1 The form contained complainant's employee identification number (not

a social security number). After reviewing the record, we provide more

specificity in identifying claim 4.

2 Complainant wrote in her complaint that the GS-12 is acting as a

branch chief. This is presumably a GS-13 level position.

3 While this point is unclear, the counselor's report suggests that

complainant stated she previously saw this document, but declined to

sign it.

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0120091347

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120091347