01a03706
08-03-2000
J. Arthelia Hamilton, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
J. Arthelia Hamilton v. Department of the Treasury
01A03706
August 3, 2000
.
J. Arthelia Hamilton,
Complainant,
v.
Lawrence H. Summers,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A03706
Agency No. 00-3097
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated March 24, 2000, dismissing her complaint of unlawful
employment discrimination brought under 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.<1>
Complainant, an agency tax examiner, contacted an EEO Counselor on January
11, 2000, claiming that she was not selected for a professional level
position in the agency's personnel office despite having a law degree.
Complainant further indicated that because she held a law degree, she
was under-employed and yet the agency's management failed to assist
her in obtaining a professional level position. When counseling was
unsuccessful, complainant filed a formal complaint on February 3, 2000,
claiming discrimination on the bases of race and age.
In her complaint statement, complainant acknowledges that she received
notice of her non-selection for the position at issue on November 9-11,
1999, such that her EEO contact was untimely. She requests an extension,
noting the importance of the agency's EEO program as set forth in the
agency's Handbook, and also claiming that the non-selection was part of
a pattern of on-going discrimination. Specifically, she avers that this
pattern is evidenced by the lack of diversity in the agency's management
staff, and that she personally experienced this discrimination when
management failed to assist her on obtaining a profession position as
early as 1996, in her first year of employment with the agency, and
most recently when an EEO manager stated to her on January 25, 2000,
that: �You were hired as a tax examiner and you are a tax examiner,
so just what is your problem?�
In a letter dated February 29, 2000, the agency requested clarification of
the complaint statement. Complainant responded in a letter dated March
13, 2000, indicating that the agency failed to assist her in developing
an Independent Development Plan, and that management failed to help her
obtain a professional level position.
The agency dismissed the non-selection claim in the complaint for
untimely EEO Counselor contact, finding that complainant failed to
provide sufficient justification to extend the time limit. The agency
found that complainant was not aggrieved by the remark allegedly made by
the EEO manager, and dismissed this portion of the complaint for failure
to state a claim. The agency also rejected complainant's claim that the
discrimination was on-going, noting that to extend the time limit under a
continuing violation theory, the untimely incidents must be interrelated
to a timely incident, which is not demonstrated in the instant case
because the non-selection and the remark are not related incidents.
On appeal, in pertinent part, complainant repeats her contentions as set
forth in her complainant statement and her March 13, 2000, letter to the
agency clarifying this statement. In response, the agency elaborates
on the findings in its dismissal determination, indicating that the
EEO's manager's remark was insufficient to state an actionable claim
of harassment. The agency further indicated that a continuing violation
theory was not applicable to the instant case because with the dismissal
of the remark claim, complainant had no timely claims of discrimination.
The Commission finds that complainant's non-selection claim was
properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(2)), for untimely EEO contact. The record discloses that the
alleged discriminatory event occurred on approximately November 9-11,
1999, when complainant received notice of her non-selection, but that
she did not initiate contact with an EEO Counselor until January 11,
20000, which is beyond the forty-five (45) day limitation period.
Although this time limit may be tolled when circumstances justify
it, complainant has presented no persuasive arguments or evidence
to warrant an extension of the time limit for initiating EEO contact.
We also agree with the agency that this claim may not be deemed timely
under a continuing violation theory because the incidents at issue at
not interrelated, and, with the dismissal of the remark claim, there
is no timely claim set forth as required under this theory. See Reid
v. Department of Commerce, EEOC Request No. 05970705 (April 22, 1999).
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 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).
Here, we find that complainant is claiming that she has been subjected
to on-going discrimination by the agency's failure to place her in
a profession level position befitting one who holds a law degree.
She argues that the agency has failed to assist her or to place her in
such a position because of race and age animus, pointing to the alleged
non-diversity in the agency's management personnel. She claims that
the remark made to her by the EEO manager was not only unprofessional,
but reflected management's attitude toward minorities attempting to
obtain professional level positions at the agency. She claims that she
is harmed because she does not have a professional level position.
After careful review, we concur with the agency that complainant has
not demonstrated how she is �aggrieved� regarding her claim. First, 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). Second, we find that complainant
has failed to identify any specific incidents where the agency denied
her promotion opportunities. Complainant claims that the agency had a
duty to promote her once she informed them that she had obtained her bar
license, and surmised that its failure to undertake efforts to do so must
be discriminatory because the management staff lacked diversity. We find
that the agency's purported failure to provide her with a professional
level position, or to otherwise assist her in obtaining one, does not
render her aggrieved within the meaning of the law and regulations
cited above. Furthermore, as noted by the agency, the remark at issue,
even considered in the context of complainant's entire claim, does not
raise to the level of an actionable harassment claim. Cobb v. Department
of Treasury, EEOC Request No. 05970077 (March 13, 1997).
Accordingly, the agency's final decision dismissing the instant complaint
is AFFIRMED.
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); 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 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 (S0400)
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
August 3, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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.