Joanie Jackson, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 18, 2000
01a00148 (E.E.O.C. Feb. 18, 2000)

01a00148

02-18-2000

Joanie Jackson, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Joanie Jackson, )

Complainant, )

)

v. ) Appeal No. 01A00148

) Agency No. 09905J0100

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

____________________________________)

DECISION

On October 11, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) issued on August 31, 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> The Commission accepts the current appeal

in accordance with EEOC Order No. 960.001.

ISSUE PRESENTED

The issue presented herein is whether the agency properly dismissed the

instant case for failure to state a claim.

BACKGROUND

The record reflects that for the relevant period of time, complainant was

employed by the U.S. Army Corps of Engineers as a secretary, GS-0318-06.

Complainant states, that on April 8, 1999, she received a memorandum

from her supervisor alerting her that she twice failed to sign out before

leaving work. Complainant responded to this memo by acknowledging that

she had failed

to sign out on April 6, 1999 and April 7, 1999, but two co-workers

also violated the rules of the attendance policy and had not received a

similar memo. In addition, complainant states that she in fact requested

that her supervisor discuss with her any deficiencies in her employment

when they occur, as opposed to after she receives her evaluation,

in an effort to immediately correct any problem, so that it would not

jeopardize her evaluation.

Believing that she was the victim of discrimination, on April 14,

1999, complainant initiated contact with an EEO Counselor. During the

counseling period, complainant stated that she being harassed by her

supervisor when she received a memorandum from him informing her she

failed to sign out on April 6, 1999 and April 7, 1999.

Counseling failed, and on June 17, 1999,complainant filed a formal

complaint claiming that she has been the victim of unlawful employment

discrimination on the basis of reprisal (prior EEO activity). The formal

complaint was comprised of the matters for which complainant underwent

EEO counseling, discussed above.

On August 31, 1999, the agency issued a final decision dismissing the

instant case for failure to state a claim. Specifically, the agency found

that the above action did not render complainant an aggrieved employee.

ANALYSIS AND FINDINGS

Volume 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 22,

1994).

In the instant matter, complainant alleged that the agency had engaged

in discriminatory conduct when she was issued a memorandum informing

her that she failed to sign out on April 6, 1999 and April 7, 1999. Upon

review, we find that the agency's dismissal of complainant's complaint

was proper. The Commission finds that complainant's claim addresses the

issuance of an official discussion on April 8, 1999. The record contains

no evidence that the discussion (memorandum)

was made a part of complainant's personnel file. Moreover, there is no

evidence reflecting that any discipline was issued as a result of the

memorandum. See Miranda v. United States Postal Service, EEOC Request

No. 05920308 (June 11, 1992); Devine v. United States Postal Service,

EEOC Request Nos. 05910268, 05910269 and 05910270 (April 4, 1991).

Furthermore, complainant's contention that the official discussion

(memorandum) was an example of the agency's attempt to harass her is not

persuasive. Complainant has not alleged facts sufficient to show that

she was subjected to discriminatory harassment that was sufficiently

severe or persuasive to alter the conditions of her employment. Cobb

v. Department of the Treasury, EEOC Request No. 05970077 (March 13,

1997). Accordingly, the agency's decision dismissing complainant's

complaint for failure to state a claim was proper.

CONCLUSION

For the reasons set forth herein, the Commission hereby AFFIRMS the

decision of the agency dismissing the present case for failure to state

a claim.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

February 18, 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 Assistant1On 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.