01991332_r
02-26-2002
Joanie M. Jackson, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Joanie M. Jackson v. Department of the Army
01991332
February 26, 2002
.
Joanie M. Jackson,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01991332
Agency No. AUGEF09806I0140
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 27, 1998, dismissing her complaint of unlawful
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. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of sex and in reprisal for prior EEO activity when:
She was denied the position as Corps Financial Management System (CFMS)
Trainer;
She was not allowed to attend the retirement luncheon for an agency
employee;
She requested approval of overtime worked on April 24, 1998. In her
formal complaint, complainant asserted that the supervisor approved
the overtime, but only initialed the overtime request form, instead
of providing his full signature, thereby manifesting �a reluctance to
approve it;� and
The agency deleted the section of her performance standards relating to
tour of a project site, thereby causing complainant to be confined to
her office.
In its final decision, the agency found that complainant failed to
initiate timely EEO Counselor contact with respect to claims 1, 2,
and 4. The agency concluded that claims 1, 2, and 4 occurred more than
forty-five days prior to complainant's contact with an EEO Counselor
on June 8, 1998. Specifically, the agency determined that the matter
addressed in claim 1 occurred in May, July, and August 1997, when
selections were made for the agency �Train the Trainer� program; that
the retirement luncheon identified in claim 2 occurred in August 1997;
and that the change in complainant's performance standards occurred two
years prior to her pursuit of the EEO complaint process. The final agency
decision also found that claim 3 failed to state a claim of employment
because complainant's overtime was approved by her supervisor on April
25, 1998.
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.
EEOC Regulations further provide that the agency or the Commission
shall extend the time limits when the individual shows that she was
not notified of the time limits and was not otherwise aware of them,
that he did not know and reasonable should not have knows that the
discriminatory matter or personnel action occurred, that despite due
diligence he was prevented by circumstances beyond his control from
contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.
The Commission finds that the agency properly dismissed claims 1, 2
and 4 pursuant to 29 C.F.R. �1614.107(a)(2) for untimely contact of
an EEO Counselor. The record supports the agency's finding that the
events complainant addressed in claims 1, 2 and 4 occurred in August and
October 1997. The record further reflects that she did not contact
an EEO Counselor until June 8, 1998, well beyond the time limitation
for EEO Counselor contact. The Commission notes that a fair reading
of the instant complaint reflects that complainant claims that claims
1, 2 and 4 are part of a continuing violation. However, in order to
be timely under the theory of continuing violation, one or more of
complainant's alleged acts of discrimination must have occurred within
45 days of initial contact with an EEO Counselor. In the instant matter,
complainant's June 8, 1998 EEO Counselor contact was more than forty-five
days after the events identified in claims 1, 2 and 4. Moreover,
as discussed below, the only remaining claim in the instant complaint
(claim 3) is not a viable claim. The Commission therefore determines that
a continuing violation analysis is not necessary. Moreover, on appeal,
complainant offers no persuasive arguments to justify the extension of
the forty-five day time limitation.
EEOC Regulation 29 C.F.R. 1614.107(a)(1) provides 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. 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 no remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
Claim 3 was dismissed for failure to state a claim. The agency determined
that because complainant's overtime was approved by her supervisor, she
was not an aggrieved employee. We agree. The Commission finds that the
complaint fails to state a claim under 29 C.F.R. Part 1614 because the
claims, even if proven to be true, would not indicate that complainant
has been subjected to harassment that was sufficiently severe or pervasive
to alter the conditions of employment. Moreover, the complaint does not
otherwise challenge an unlawful employment policy or practice. See Cobb
v. Department of the Treasury, Request No. 05970077 (March 13, 1997).
Accordingly, the agency's dismissal of claim 3 is AFFIRMED.
Accordingly, the agency's dismissal of claims 1, 2 and 4 on the grounds
of untimely EEO Counselor contact is AFFIRMED. The agency's dismissal
of claim 3 for failure to state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 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 (S0900)
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
February 26, 2002
__________________
Date