01A04145
10-20-2000
Donna M. Cutley-Kite, Complainant, v. Ida L. Castro, Chairwoman, Equal Employment Opportunity Commission, Agency.
Donna M. Cutley-Kite v. Equal Employment Opportunity Commission
01A04145
October 20, 2000
.
Donna M. Cutley-Kite,
Complainant,
v.
Ida L. Castro,
Chairwoman,
Equal Employment Opportunity Commission,
Agency.
Appeal No. 01A04145
Agency No. 0-0000001-LA
DECISION
Upon review, the Commission<1> finds that one of two claims raised in
complainant's complaint was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact, and that the second
claim was properly dismissed under 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.<2>
The record discloses that on December 9, 1999, complainant filed a
formal complaint claiming that she was the victim of unlawful employment
discrimination in reprisal for prior protected activity when she was
not selected for the position of Investigator pursuant to Announcement
No. LADO-99-07 in June 1999; and when she was not selected for an
Investigator position pursuant to Announcement No. LADO-99-25, in
September 1999.
On February 28, 2000, the agency issued a final decision. Therein, the
agency dismissed the claim relating to Announcement No. LADO-99-07 on
the grounds of untimely EEO Counselor contact. Specifically, the agency
noted that though complainant's initial EEO Counselor contact occurred
on September 7, 1999, she was informed in June 1999, that she was not
selected under this Announcement Number, which is more than forty-five
days before her initial EEO contact.
Regarding the vacancy under Announcement No. LADO-99-25, the agency
dismissed this matter for failure to state a claim. Specifically,
the agency determined that this announcement was canceled and that no
one was selected. The agency therefore concluded that complainant was
not aggrieved. The record in this case contains a memorandum from the
agency's office of Field Programs to the agency Los Angeles office,
dated December 13, 1999, indicating that the authority to fill the
Investigator position was canceled.
Regarding the claim relating to Announcement No. LADO-99-07, the record
discloses that complainant became aware in June 1999, that she had not
been selected for a position as an Investigator, but that she did
not initiate contact with an EEO Counselor until September 7, 1999,
which is beyond the forty-five (45) day limitation period. On appeal,
complainant asserts that her EEO Counselor contact on September 7, 1999,
was timely because on August 30, 1999, the agency filled additional
positions pursuant to Announcement No. LADO-99-07.
We are not persuaded by complainant's argument. Despite complainant's
argument on appeal, the record reflects that complainant knew as early as
June 1999, that she had not been selected for the position for which she
applied under Announcement No. LADO-99-07, and that complainant failed
to seek counseling within forty-five days of the date she learned of
her non-selection. By her own admission in a statement dated February 2,
2000, complainant indicated that:
I became aware that I was not selected for the position in June of 1999
by co-workers telling me that I had not been chosen and later an e-mail
dated approximately June 10, through June 30, 1999 addressed to the
entire staff stated that [an agency co-worker] had been chosen.
The evidence of record reveals clearly that complainant had knowledge
in June 1999 that she had not been selected for the position, but she
failed to contact an EEO Counselor regarding her claim of discrimination
until September 7, 1999. The Commission therefore determines that
the agency's dismissal of complainant's claim relating to Announcement
No. LADO-99-07 was proper and is AFFIRMED.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, 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. 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter referred to as 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).
The Commission determines that the agency's dismissal of complainant's
claim that she was not selected for a position pursuant to Announcement
No. LADO-99-25 was proper. The record indicates that the announcement
for this position was canceled on December 13, 1999. Complainant is
not an aggrieved employee within the meaning of EEOC Regulations.
Accordingly, the agency's decision dismissing the claim relating to
Announcement No. LADO-99-25 is AFFIRMED.
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:
_____________________________________
Frances Hart
Executive Officer
Executive Secretariat
October 20, 2000
__________________
Date
___________________
Date
1In the instant mater, the EEOC is both the respondent and
the adjudicatory authority. The Commission's adjudicatory
function is separate and independent from those offices
charged with in-house processing and resolution of
discrimination complaints. For purposes of this decision,
the term �Commission� or �EEOC� will be used when referring
to the adjudicatory authority and the term �agency� will be
used when referring to the respondent part in this action.
The Chairwoman has recused herself from participation in
this decision.
2On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.