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

Equal Employment Opportunity CommissionJan 7, 2000
01992956 (E.E.O.C. Jan. 7, 2000)

01992956

01-07-2000

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


Joanie M. Jackson, )

Complainant, )

)

v. ) Appeal No. 01992956

) Agency No. AUGEFO9812I0180

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

____________________________________)

DECISION

INTRODUCTION

Complainant filed an appeal with this Commission from a final

agency decision (FAD) 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.<1> The final agency decision was

dated January 22, 1998. The appeal was postmarked February 25, 1999.

Accordingly, the appeal is timely (see, 64 Fed. Reg. 37,644, 37,659

(1999)(to be codified and hereinafter referred to as EEOC Regulation 29

C.F.R. � 1614.402(a)), and it is accepted in accordance with EEOC Order

No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed the

complaint for failure to state a claim, stating a claim pending before

the Commission, and failure to comply with applicable time limits.

BACKGROUND

The record indicates that on October 9, 1998, complainant initiated

contact with an EEO Counselor regarding her complaint. Informal efforts

to resolve the concerns were unsuccessful. On November 25, 1998,

complainant filed a formal complaint, alleging that she was the victim of

continuous harassment on the bases of reprisal after she testified against

her supervisor at an arbitration hearing in 1995. On January 22, 1998,

the agency issued a final decision dismissing the continuing violation

complaint for failure to state a claim, stating a claim that is pending

before the Commission, and failure to comply with applicable time limits.

Specifically, the agency found that her allegations were not based on

any employment discrimination prohibited by federal regulations. Also,

the agency believed the complaint incorrectly addressed issues that had

occurred between October 1995 and August 1998.

ANALYSIS AND FINDINGS

EEOC Regulations provide that an agency shall dismiss a complaint that

fails to state a claim. 29 C.F.R. � 1614.107(a). Based on a review of

the record, we find that the agency properly dismissed the complaint for

failure to state a claim of reprisal on the grounds that the complaint did

not fall within the purview of the EEO process. The basis of reprisal was

the only basis of discrimination identified by the complainant. There is

no evidence to indicate that she engaged in any EEO or other protected

activity in 1995. In fact, the November 25, 1998 complaint identified

the matter giving rise to the complaint as previous union activity and

not as previous EEO activity.<2> When a complaint of reprisal fails to

identify any EEO or other protected activity, the complaint is not within

the purview of Title VII and must be dismissed for failure to state

a claim. Bryant v. Department of Justice, EEOC Request No. 05980273

(June 4, 1999).

Since we are affirming the agency's dismissal of the complaint for

failure to state a claim of reprisal, we will not address the agency's

alternative grounds for dismissing this complaint, i.e., stating a

claim that is pending before the Commission and failure to comply with

applicable time limits.

CONCLUSION

Accordingly, the agency's final decision is AFFIRMED.

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:

01/07/00 ____________________________

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.

2Complainant does not indicate that the arbitration hearing, in any

respect, concerned an EEO related matter.