0120071985
01-28-2009
Deangeles Davis, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Contract Management Agency), Agency.
Deangeles Davis,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Contract Management Agency),
Agency.
Appeal No. 0120071985
Agency No. YS-07-0008
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated January 5, 2007, 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.
On October 16, 2006, complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful. On November
22, 2006, complainant filed the instant formal complaint. Therein,
complainant alleged that she was subjected to discrimination on the
bases of race, sex, and in reprisal for prior EEO activity when1:
(1) On April 15, 2005, she was terminated from Federal Service and the
local Commander did not make an inquiry to determine her eligibility to
apply for disability retirement, and she did not inform complainant of
her disability retirement rights.
(2) Prior to, and after her separation, complainant was subjected to
harassment from agency officials when:
(a) an agency manager was pressuring her to quit her job by stating
that she should resign "...before they terminate you and you lose your
pension;"
(b) on or about April 15, 2005, agency officials worked collusively with
the union to undermine her position as the standing union president;
(c) on June 11, 2005, the local Commander submitted a false affidavit
to strengthen the government's case; and
(d) on August 1, 2005, the local Commander misrepresented the facts
during her unemployment benefits hearing.
(3) In October 2006, the local Commander misrepresented the facts when
speaking to the EEO Counselor on the instant case, stating she had asked
complainant many times for medical documentation.
In its January 5, 2007 final decision, the agency dismissed complainant's
complaint on a variety of grounds. It is from this decision that
complainant now appeals.
First, the agency dismissed claim (1) as a collateral attack on a decision
by the Merit Systems Protection Board (MSPB). The record establishes
that on June 8, 2006, the MSPB issued a decision affirming complainant's
removal. MSPB Docket No. AT-0752-05-0596-I-2. On September 19, 2006,
this Commission issued a decision concurring with the MSPB's finding of
no discrimination. EEOC Petition No. 0320060115. Accordingly, the agency
properly dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(1) and
(4), and is affirmed.
The agency also dismissed claim (2) on the grounds of untimely EEO
Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). 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 record indicates that
the most recent harassing event identified by complainant occurred on
August 1, 2005, but she did not initiate contact with an EEO counselor
until October 16, 2006, well beyond the 45-day limitation period.
A hostile work environment claim will not be time barred if all acts
constituting the claim are part of the same unlawful practice even if some
component acts of hostile work environment fall outside the statutory
time period so long as an act contributing to the claim falls within
the filing period. National Railroad Passenger Corporation v. Morgan,
Jr., 536 U.S. 101, 117 (2002). However, the record in the instant
case does not establish an alleged incident occurred within 45 days
of complainant's October 16, 2006, EEO counselor contact. Accordingly,
the agency's dismissal of claim (2) on timeliness grounds is affirmed.
Finally, with regard to claim (3), the Commission finds that it fails
to state an independent claim of discrimination, but rather concerns
the veracity of a witness to the instant complaint. Therefore, it is
appropriately dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
Accordingly, for the reasons stated above, the agency's dismissal of
the instant complaint in its entirety is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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, D.C. 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
January 28, 2009
__________________
Date
1 For purposes of clarity, the Commission as numbered complainant's
claims as claims 1 - 3.
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0120071985
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120071985