01984776
08-26-1999
Helen K. Bryan, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Helen K. Bryan v. Department of Defense
01984776
August 26, 1999
Helen K. Bryan, )
Appellant, )
)
)
v. ) Appeal No. 01984776
) Agency No. XQ-98-008
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
______________________________)
DECISION
Appellant filed a timely appeal with this Commission from a May 1, 1998
final agency decision concerning 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. and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.
See 29 C.F.R. �1614.402(a).
The record indicates that on September 8, 1997, appellant contacted an
EEO Counselor concerning her complaint. Thereafter, appellant filed a
formal complaint dated January 20, 1998, alleging discrimination based
on sex (female) and age (DOB: 4-2-46) when:
On September 3, 1997, she became aware that management knew about
malicious rumors and slanderous remarks being made about her by her
coworker and continued to allow the slanderous remarks and rumors to
spread among coworkers;
On September 3, 1997, her suspicions were confirmed when she received
affidavits from several coworkers concerning the malicious and slanderous
remarks being made about her;
She was denied a Sustained Superior Performance Award for the award time
frame ending April 30, 1997;
She was denied the opportunity to apply for a Contract Administrator
Training Position for Job Announcement Number GA-221-97 based on direction
provided by management;
On October 21, 1996, she was informed to pack up her office and report
to the Seal Beach site on October 23, 1996, and was not provided the
Official Notification of Personnel Action until March 31, 1997, which
did not reflect the actual report date;
On September 20, 1996, she was informed by managerial officials that she
was being transferred from the Irvine site at the end of December 1996,
following a scheduled Quality Survey Review (QSR) and later transferred
back after the completion of the QSR; and the QSR was canceled and
management did not revisit the reassignment; and
On September 20, 1996, she was informed by her chief that she was being
transferred from Santa Ana - Irvine to the Technical Assistance Group
(TAG).
Appellant also indicated that on July 22, 1997, she learned that an
identified agency employee had been making the slanderous and false
rumors, described in allegations (1) and (2), i.e., accusing her and her
coworker of being lesbians. Appellant also indicated that management was
aware of the rumors during the past two years and took the discriminatory
actions concerning her promotion and/or assignments, described in
allegations (3) through (7). During EEO counseling, appellant asserted
that the alleged incident of allegation (4) occurred in November 1996,
On May 1, 1998, the agency issued a final decision dismissing appellant's
complaint. Specifically, the agency dismissed allegations (1) and (2)
for failure to state a claim and allegations (3) through (7) due to
untimely EEO Counselor contact. The agency also dismissed allegations
(3) through (7) on the alternative grounds of failure to state a claim,
as moot, and/or as a proposed action.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
The Commission has held that an employee is aggrieved when one suffers
a present 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, 1997).
Allegations (1) and (2) involved slanderous and false remarks/rumors made
by an agency employee concerning appellant. The Commission has held that
a remark or comment, unaccompanied by concrete action, is not a direct
and personal deprivation sufficient to render an individual aggrieved.
See Henry v. United States Postal Service, EEOC Request No. 05940695
(February 9, 1995). Thus, we find that allegations (1) and (2) fail to
state a claim.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
should reasonably suspect discrimination, but before all the facts that
would support a charge of discrimination have become apparent.
The record, undisputed by appellant, indicates that the discriminating
incidents of allegations (3) through (7) occurred from September 1996
through April 30, 1997. Although appellant contends that she became
aware of the discrimination when she learned about the rumors, described
in allegations (1) and (2), on September 3, 1997, we do not find that
contention persuasive without further supporting evidence. We also find
that appellant knew or should have suspected the discrimination at the
time of the relevant incidents since the record clearly indicates that
she raised her dissatisfaction with the subject matters to responsible
management official(s) throughout the relevant time period. See Hosford
v. Veterans Administration, EEOC Request No. 05890038 (June 9, 1989)
(internal appeal of agency action does not toll running of limitations
period). Based on the foregoing, we find that appellant's EEO Counselor
contact regarding the subject allegations on September 8, 1997, was
beyond the 45-day time limit set by the regulations.
Accordingly, the agency's final decision is hereby AFFIRMED.<1>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
August 26, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1Since the agency's dismissal of allegations (3) through (7) due to
untimely EEO Counselor contact was affirmed, we need not address its
dismissal on the alternative grounds for failure to state a claim, as
moot, and/or as a proposed action.