Donna M. Cutley-Kite, Complainant,v.Ida L. Castro, Chairwoman, Equal Employment Opportunity Commission, Agency.

Equal Employment Opportunity CommissionOct 20, 2000
01A04145 (E.E.O.C. Oct. 20, 2000)

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.