Delia J. Jimenez, Complainant,v.Mike Donley, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionDec 30, 2009
0120093564 (E.E.O.C. Dec. 30, 2009)

0120093564

12-30-2009

Delia J. Jimenez, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.


Delia J. Jimenez,

Complainant,

v.

Mike Donley,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 0120093564

Agency No. 8Y1M09010

DECISION

Complainant filed a timely appeal with this Commission from the

agency's decision dated July 13, 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. Upon review, the Commission finds that complainant's complaint

was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) and (2)

for failure to state a claim and untimely EEO Counselor contact.

In a complaint dated July 1, 2009, complainant alleged that she was

subjected to discrimination on the bases of national origin (Hispanic)

and reprisal for prior protected EEO activity under Title VII when: 1)

In early October 2008, her supervisor selected a White female, to work

a detail as the Assistant Director at the Kirtland Youth Center after

being asked who she wanted to work with which implied that complainant's

supervisor did not want to work with complainant; 2) Around the second

week in February 2009, a manager told complainant to submit her resume for

the vacated Assistant Director position at the Maxwell Child Development

Center (CDC). However, a week later this manager stated that she was not

going to detail the position and instead assigned the responsibilities

of the position to three White females; and 3) Around March 19, 2009,

she purportedly learned that her manager was limiting complainant's

role as a supervisor, hindering her from being considered for a detail

at the Youth Center and limiting knowledge that would make complainant

a better candidate for promotion. Complainant's manager purportedly did

this by not allowing complainant the opportunity to perform duties of

the Assistant Director or Director.

In its final decision, the agency dismissed claims 1 and 2 for untimely

EEO Counselor contact and claim 3 for failure to state a claim.

Complainant's initial contact with the EEO office was April 10, 2009.

In complainant's appeal statement, she argues that upper management

continues to unlawfully stifle her career opportunities at the agency.

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 Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). 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.

Concerning claims 1 and 2, the record reflects that the alleged

discriminatory actions occurred in early October 2008 and around

the third week in February 2009. Complainant's contact with the EEO

office was 10 April 2009, approximately 161 days and 49 days after the

alleged discriminatory events, which are beyond the forty-five (45)

day limitation period. The agency's dismissal of claims 1 and 2 for

untimely EEO Counselor contact was proper.

Concerning claim 3, the Commission finds that complainant fails to state

a claim under the EEOC regulations because complainant failed to show that

she suffered harm or loss with respect to a term, condition, or privilege

of employment for which there is a remedy. See Diaz v. Department of the

Air Force, EEOC Request No. 05931049 (April 21, 1994). Therefore, the

agency's dismissal of claim 3 for failure to state a claim was proper.

Accordingly, the agency's final decision dismissing complainant's

complaint 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

December 30, 2009

__________________

Date

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0120093564

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120093564