Cynthia Woodland, Complainant,v.Spencer Abraham, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionJun 13, 2001
01997095 (E.E.O.C. Jun. 13, 2001)

01997095

06-13-2001

Cynthia Woodland, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.


Cynthia Woodland v. Department of Energy

01997095

06-13-01

.

Cynthia Woodland,

Complainant,

v.

Spencer Abraham,

Secretary,

Department of Energy,

Agency.

Appeal No. 01997095

Agency No. 99 (074) HQ/CI

DECISION

In accordance with 29 C.F.R. � 1614.405, complainant's appeal from the

agency's final decision in the above-entitled matter has been accepted

by the Commission. The issue on appeal is whether the agency properly

dismissed several allegations in complainant's formal EEO complaint on

procedural grounds.

Complainant filed a formal EEO complaint alleging in relevant part

that she was discriminated against on the bases of race (Black), color

(Black), and age (52) when she was denied educational opportunities.<1>

Complainant also alleged discrimination on the same bases when: (1)her

supervisor had a rude and demeaning attitude; (2) her parking passes

were denied; (3) she is an African-American female;(4) she is a member

of a protected group; (5) she exercised her constitutional rights in

accordance with the Civil Rights Act, as amended; and, (6) she is over

the age of forty and is a taxpayer.<2>

The agency dismissed Issue A for failure to state a claim. The agency

dismissed Issues 1-6 for failure to state a claim and also on the grounds

that the claims were not brought to the attention of an EEO Counselor

and are not like or related to a matter that had been brought to the

attention of an EEO Counselor.

EEOC Regulation 29 C.F.R. � 1614.107(a) (1) provides in relevant part

that the agency may dismiss an allegation that fails to state a claim. An

agency shall accept a complaint from any aggrieved employee who believes

that she has been discriminated against by the 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 22, 1994).

EEOC Regulation 29 C.F.R. � 1614.107(a)(2) states, in pertinent part,

that an agency shall dismiss a complaint or portion thereof which raises

a matter that has not been brought to the attention of an EEO Counselor,

and is not like or related to a matter on which the complainant has

received counseling.

Issue A

We find that the agency properly dismissed Issue A under � 1614.107(a)(2).

A review of the EEO Counselor's report indicates that complainant failed

to bring any issues even remotely related to educational opportunities

to the attention of an EEO Counselor. Having affirmed the agency on

these grounds there is no need to consider whether the allegation states

a valid claim of discrimination.

Issues 1-6

Regarding Issue 1, we find that the agency properly dismissed this

claim under � 1614.107(a)(2). Even assuming that complainant stated

a valid claim of discrimination, there is no evidence in the record

that complainant raised a claim of this nature with an EEO Counselor

prior to filing her formal EEO complaint. In addition, we find that the

agency properly dismissed Issue 2. There is no evidence that she raised

the issue of parking passes with an EEO Counselor prior to filing her

formal EEO complaint. There is therefore no need to reach the issue of

whether complainant stated a valid claim with regard to Issue 2.

Finally, we find that the agency properly dismissed Issues 3-6 for

failure to state a claim. These allegations relate more to the bases of

complainant's claims and not to the substance of her allegations.

Accordingly, for the foregoing reasons, it is the decision of the

Commission to AFFIRM the agency's final decision dismissing a portion

of complainant's complaint on procedural grounds.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 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 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 (S0900)

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, Director

Office of Federal Operations

__06-13-01________________

Date

1 For purposes of this decision this claim will be referred to as

Issue A.

2 In the complaint herein, complainant also alleged three other claims

which the agency accepted. A final decision was issued regarding

these claims which found no discrimination. Complainant has appealed

this final decision to the Commission and the Commission affirmed the

agency's finding of no discrimination. See EEOC Appeal No. 01A02878

(July 12, 2000). Thereafter, complainant filed with the Commission a

Request for Reconsideration.