0120150849
04-20-2016
Iris D.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Department of Defense Education Activity), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Iris D.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal No. 0120150849
Agency No. DDFY14124
DECISION
On December 30, 2014, Complainant filed an appeal from the Agency's December 1, 2014, final decision dismissing her equal employment opportunity (EEO) complaint alleging 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether the Agency properly dismissed Complainant's complaint for failure to state a claim and untimely contact with an EEO Counselor.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Assistant Principal at Gordon Elementary School in Fort Bragg, North Carolina. On July 29, 2014, Complainant initiated EEO counseling and filed her formal EEO complaint on September 10, 2014. She alleged that she was discriminated against on the bases of race (African-American), color (Brown skin hue), sex (female), age (date of birth: October 3, 1962), and reprisal (prior EEO Activity) when:
1. During the course of School Year (SY) 2013-2014 [August 21, 2013 -June 20, 2014], management's application of policies and practices have resulted in discrimination and retaliation on the bases of race, gender, age, color and reprisal for participation in, as well as association with others with, documented EEO activity;
2. During the course of SY 2013-2014 [August 21, 2013 - June 20, 2014], management used agency Office of Personnel Management (OPM) policies and practices to target and issue Management Directed Reassignments (MDRs), Not-to-Exceed (NTE) positions, Reduction in Force (RIF), lateral moves in tandem with Multi-Dimensional Administrator Performance Appraisal (MAPA) system to target and discriminate against minorities in administrative positions (assistant principal and principal positions) while favoring, sustaining and advancing non-minorities in and into administrative positions (assistant principal and principal positions);
3. During the course of SY 2013-2014 [August 21, 2013 - June 20, 2014], management's application of MDRs, offers of NTE positions, which included the requirement that the employee agree to be demoted at the end of the Agency controlled tenure, demotions, decisions to excess [sic] employees, and RIF processes has resulted in disparate and discriminatory constructs which favored, sustained and promoted non-minority employees while only affording conditional or no opportunities for minorities (the protected class group to retain positions or progress to a higher level position) and;
4. During the course of SY 2013-2014 [August 21, 2013 -June 20, 2014], management executed OPM policies and practices with an intentionality which created a segregated use of MDRs, NTE assignments encumbered with promotions, RIF, decisions to excess, demotions and lack of promotions which denied opportunities to minorities while insulating non-minorities to these same actions.
On December 1, 2014, the Agency dismissed Complainant's complaint. Specifically, it found that Complainant failed to state a claim because she did not allege that she was subject to any adverse actions by the Agency. Additionally, the Agency dismissed claims 2-4 for untimely contact with an EEO counselor. The Agency learned from one of the alleged responsible management officials that Complainant received a lateral move on August 20, 2013, but that Complainant did not voice any concerns about the reassignment. Complainant also learned that she was not selected for a Principal position on September 17, 2013, but the Agency noted that Complainant stated that she was not interested in the Principal position because it was a temporary position. Regardless, Complainant did not bring these matters to the attention of an EEO counselor until well after the 45 day deadline, on July 29, 2014. Accordingly, the Agency dismissed her complaint for failure to state a claim and for untimely counseling contact.
On December 30, 2014, Complainant filed an appeal of her dismissal and submitted a brief in support of her appeal on January 26, 2015. On February 25, 2015, the Agency submitted a response to Complainant's Appeal requesting that the Commission affirm its final decision to dismiss Complainant's complaint.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency dismissed her complaint because it "exposed years of lack of due diligence of the Agency [Diversity Management and Equal Opportunity] DMEO which has permitted [the Agency] to perpetuate a racially hostile climate helmed by depots [sic] dominated by non-minority class members in executive, senior level positions and managers." Complainant attached the Agency's MD-715 Reports in support of her allegation that there is a "lack of enforcement of diversity policies."
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Failure to state a claim
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that she is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
We find that the Agency appropriately dismissed Complainant's complaint for failure to state a claim. Complainant's stated claims do not allege that she suffered any specific harm to a term, condition or privilege of her employment for which there is a remedy. With its response, the Agency provided a declaration from the EEO Counselor (C1) who processed Complainant's EEO complaint. C1 explained his multiple attempts to obtain information from Complainant about how she was aggrieved by the Agency but that she could not or would not identity how she was aggrieved. Moreover, we find that Complainant has not clarified her claims on appeal but instead, makes various arguments that the Agency's DMEO Chief and Compliance Manager lacked due diligence regarding EEO implementation and policy enforcement.
Untimely contact with an EEO Counselor
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.
We find it unclear if Complainant alleged discrimination in regards to her reassignment and non-selection. However, even assuming that Complainant raised these claims, we find that the Agency properly dismissed them for untimely contact with an EEO counselor. Complainant's reassignment occurred on August 20, 2013, and she learned that she was not selected for the Principal position on September 17, 2013, but did not contact an EEO counselor until July 29, 2014. Complainant's contact occurred over 300 days of both these events. Accordingly, we find that the Agency appropriately dismissed Complainant's complaint for untimely EEO counselor contact.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision dismissing Complainant's complaint for failure to state a claim and for untimely EEO Counselor contact.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
_4/20/16_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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