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.