01A30506
03-06-2003
Dorcas D. Holmes, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Dorcas D. Holmes v. Department of Defense
01A30506
March 6, 2003
.
Dorcas D. Holmes,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A30506
Agency No. JQ-02-083
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to 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. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
On June 11, 2002, complainant contacted the EEO office regarding
claims of discrimination based on race and reprisal. Informal efforts
to resolve complainant's concerns were unsuccessful. Subsequently,
complainant filed a formal complaint. The agency, in its decision,
framed the claims as follows:
(1) On May 10, 2001, complainant was intimidated, denied representation,
and falsely accused of theft.
(2) On June 11, 2002, management denied complainant's request for
a copy of the results of the May 23, 2002 investigation conducted on
the allegation of theft nor did they provide complainant with a final
decision regarding the charges.
(3) Since the theft charge is still pending, it may be used against
complainant in any future personnel action including disciplinary actions
and/or a dismissal from Federal service.
On September 23, 2002, the agency issued a decision dismissing
the complaint. Specifically, claim (1) was dismissed for untimely
counselor contact. The agency stated that complainant contacted the
EEO office 297 days after the allegedly discriminatory event occurred.
Claim (2) was dismissed as moot. According to the agency, on June 21,
2002, complainant was given a letter stating that: there were "no such
charges" of theft against her, "no action has been or will be taken
against you for downloading EEO files"; and the investigative report is
not being kept in a "personnel history file" as there is no such file.
Moreover, the agency asserted that complainant was provided a copy
of the investigative report in October 2001. With respect to claim
(3), the agency dismissed the matter for failure to state a claim.
The agency reasoned that "what may happen in the future is speculative"
and therefore complainant failed to establish a personal harm or loss
regarding a term, condition or privilege of her employment.
On appeal, complainant argues that the theft charges (claim (2))
"have [the] potential to adversely affect [me] in the present and in
the future." She contends that the charges can be accessed through her
records and used to deny her a promotion or justify disciplinary action.
According to complainant, the agency is playing games when it says that
�the investigative report is not being kept in a personnel history file
and that there is no file by that name" because the records are being
kept at the police station. With respect to claim (3), complainant
argues that she has stated a claim based on retaliation for reporting
"malfeasance in the EEO office. . . ."
In response, the agency reiterates that, regarding claim (2), complainant
was provided a copy of the investigative report on October 17, 2001.
Further, in response to complainant's request for the status of the
investigation, the agency states that it informed complainant in writing
that no action has been or will be taken against her. With respect to
claim (3), the agency argues that the occurrence of the investigation
and existence of the report does not state a claim of discrimination.
Claim (1)
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.
Here, complainant contacted the EEO office on June 11, 2002, regarding
an allegedly discriminatory action that occurred on May 10, 2001.
Complainant has not provided sufficient justification for tolling
or extending the forty-five-day time limitation. Therefore, we find
that the agency properly dismissed claim (1) pursuant to 29 C.F.R. �
1614.107(a)(1).
Claim (2)
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for
the dismissal of a complaint when the issues raised therein are moot.
To determine whether the issues raised in complainant's complaint are
moot, the factfinder must ascertain whether (1) it can be said with
assurance that there is no reasonable expectation that the alleged
violation will recur; and (2) interim relief or events have completely
and irrevocably eradicated the effects of the alleged discrimination.
See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo
v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).
When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented.
In claim (2), complainant claims she was denied a copy of the theft
investigation and she was not given a final decision regarding the
charges. As noted above, the agency argues that complainant was indeed
provided a copy of the investigative report and informed that no action
would be taken against her. In support of its assertions, the agency has
provided a copy of an October 17, 2001 letter transmitting the report,
as well as a copy of a June 21, 2002 letter explaining that "no action has
been or will be taken against you for downloading the EEO files . . . ."
Therefore, we find that the matter is moot.
Claim (3)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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. 29 C.F.R. �� 1614.103,
.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 21, 1994).
With respect to claim (3), complainant argues that the theft charge
may be used against her in a future personnel action. The Commission
finds that claim (3) concerns speculative and possible future harm.
See Stroud v. Department of the Treasury, EEOC Appeal No. 01952101
(October 26, 1995); Spencer v. Department of the Navy, EEOC Appeal
No. 01942408 (May 27, 1994). There is no present injury to complainant.
While complainant argues that records are being maintained, the agency
notes that any reference to the theft investigation is not contained in
a personnel file. We note that while complainant contends that records
regarding the investigation are "at the police station," this is not
supported by the record. Moreover, even assuming that a record of the
investigation is on file with agency police, complainant has failed
to show how this has resulted in a personal loss or harm to a term,
condition or privilege of her employment. Accordingly, the absence of an
actual present harm dictates the conclusion that complainant has failed
to state a claim in claim (3). See Parks v. Department of Defense, EEOC
Request No. 05950314 (September 11, 1995) (citing Drummond v. Department
of the Army, EEOC Request No. 05940574 (February 7, 1995)).
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
March 6, 2003
__________________
Date