01a01294
07-20-2000
Dottery A. Washington, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Dottery A. Washington v. Department of the Navy
01A01294
July 20, 2000
Dottery A. Washington, )
Complainant, )
)
v. ) Appeal No. 01A01294
) Agency No. DON-99-00183-091
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
On December 2, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by her on November
3, 1999, pertaining to her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq<1> In her complaint, complainant alleged that
she was subjected to discrimination on the bases of race (Black), sex
(female) and reprisal (prior EEO activity) when:
her supervisor denied her request to attend a training course entitled
�Leadership Skills for Non-Supervisors�
on July 20, 1999, her supervisor denied her request to cross train in
the computer field;
on July 15, 1999, her supervisor volunteered her to be detailed to
the Van Program;
on July 30, 1999, her supervisor made negative comments about her to
another supervisor; and
on July 30, 1999, her supervisor disrespected her in front of co-workers
when he told her in a cruel manner to return to her workplace.
The agency dismissed claims (2), (3), (4) and (5) pursuant to 64
Fed. Reg. 37,644, 37, 656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) for failure to state a claim.
Specifically, the agency found that claims (2) through (5) failed to
render complainant an aggrieved employee within the meaning of EEOC
Regulations. The agency dismissed claim (1) of the instant complaint
pursuant to 64 Fed. Reg. 37,644, 37, 656 (1999)(to be codified and
hereinafter cited as 29 C.F.R. � 1614.107(a)(2)), for failure to timely
contact an EEO Counselor regarding her claim of discrimination.
On appeal, complainant argues that no one had informed her that the
forty-five day limitation period for timely contacting an EEO Counselor
included weekends. Specifically, complainant argues �[C]learly by being
in the federal government and military 45 days mean[s] 45 working days
Monday thru Friday.�
EEOC Regulation 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 22, 1994).
Here, complainant alleges that because of her race and sex, and
in reprisal for prior participation in the EEO process, the agency
discriminated against her by its conduct as described in claims (2), (3)
(4), and (5). Upon review, we find that the agency's determination that
claims (4) and (5) fail to state a claim was proper. Therein, complainant
alleges that her supervisor made negative comments about her to another
supervisor, and that on another occasion, he disrespected her in front
of other employees. The Commission has repeatedly found that remarks
or comments unaccompanied by a concrete agency action are not a direct
and personal deprivation sufficient to render an individual aggrieved
for the purposes of Title VII. See Backo v. United States Postal
Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No. 05940695 (February 9, 1995).
Because complainant did not suffer any direct and personal harm as
a result of her supervisors alleged conduct, she is not an aggrieved
employee within the meaning of EEOC Regulations. The agency's decision
dismissing claims (4) and (5) for failure to state a claim is AFFIRMED.
We find, however, that the agency's determination that claims (2)
and (3) fail to state a claim was improper. In claims, (2) and (3)
complainant alleges that for discriminatory purposes, the agency denied
her an opportunity to cross train in another field and detailed her
to another position. The incidents as described in claims (2) and (3)
clearly state a justiciable claim of employment discrimination regarding
terms and conditions of complainant's employment. It is the Commission's
decision, therefore, that the agency's dismissal of claims (2) and (3)
for failure to state a claim be and is hereby REVERSED.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.105(a)(1)) requires that
complaints of discrimination should be brought to the attention of the EEO
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. 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.
In its FAD with respect to claim (1) , the agency indicates that
complainant's supervisor denied her request to attend �Leadership Skills
for Non-Supervisors� on June 4, 1999. The record contains a document
dated June 4, 1999, wherein an agency official denied complainant's
request for this training.<2> On appeal, complainant's sole argument
relating to the timeliness of her EEO Counselor contact is that she
construed the forty-five day limitation period as excluding weekends.
Complainant's initial EEO Counselor contact on August 2, 1999, was beyond
the limitation period for timely contacting an EEO Counselor. Complainant
has failed to present adequate justification for extending the limitation
period beyond forty-five days. Accordingly, the agency's decision to
dismiss claim (1) for failure to initiate contact with an EEO Counselor
in a timely fashion was proper and is AFFIRMED.
CONCLUSION
For the foregoing reasons, the agency's dismissal of claims (2) and (3)
for failure to state a claim, is REVERSED, and the claims are REMANDED
to the agency for processing. The agency's dismissal of claims (1),
(4) and (5) is AFFIRMED for the reasons set forth herein.
ORDER (E0400)
The agency is ORDERED to process the remanded claims (claims 2 and 3)
in accordance with 64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.108). The agency shall
acknowledge to the complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to complainant a copy of the investigative file
and also shall notify complainant of the appropriate rights within one
hundred fifty (150) calendar days of the date this decision becomes
final, unless the matter is otherwise resolved prior to that time.
If the complainant requests a final decision without a hearing, the
agency shall issue a final decision within sixty (60) days of receipt
of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action AFTER
ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
July 20, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On 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 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at www.eeoc.gov.
2 In its final decision, the agency stated that complainant indicated
that she met with her supervisor on June 15, 1999, regarding the
training denial. On appeal, the agency confines its argument on this
matter to the denial of June 4, 1999, discussed above. On appeal,
complainant does not address the agency's discussion of either the June
4, 1999 date or the June 15, 1999 date. The Commission notes, moreover,
that either date would be untimely with regard to complainant's initial
EEO Counselor contact on August 2, 1999.