01990503
11-08-1999
Karen Miller, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Karen Miller v. Department of the Army
01990503
November 8, 1999
Karen Miller, )
Appellant, )
) Appeal No. 01990503
v. ) Agency No. 09706H0340
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DISMISSAL OF APPEAL
Appellant filed an appeal on October 21, 1998, with this Commission
from the September 22, 1998 final agency decision (FAD) dismissing
her EEO 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. and � 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.
Appellant has alleged discrimination by the agency through many different
actions. The record indicates the allegations are as follows:
Counseled for arriving 20 minutes late for duty on April 18, 1997.
Received a performance evaluation on January 2, 1997 where her ratings
were less than excellence.
Accused of improperly purging records from personnel files on May 9,
1997.
Initially, denied representation at a meeting regarding purging records
from personnel files.
Denied use of the office microwave oven to heat her cervical gelpak.
Denied official commendation for contribution to the Army Suggestion
Program.
Denied request to obtain statement of daily duties.
Questioned about what was inside a certified mail packet that she was
delivering on her way out for the lunch hour on May 23, 1997.
Accused of inappropriately writing comments on an original performance
evaluation.
On, June 18, 1997, appellant filed a civil action (identified as
Civil Action No. 1:CV-97-0919) in the United States District Court
for the Middle District of Pennsylvania. The record discloses that
the appellant's allegations 1 through 7 were raised in the District
Court civil action. EEOC Regulation 29 C.F.R. �1614.410 provides that
the filing of a civil action "shall terminate Commission processing
of the appeal." Commission regulations mandate dismissal of the EEO
complaint under these circumstances so as to prevent a complainant
from simultaneously pursuing both administrative and judicial remedies
on the same matters, wasting resources, and creating the potential
for inconsistent or conflicting decisions, and in order to grant due
deference to the authority of the federal district court. See Stromgren
v. Department of Veterans Affairs, EEOC Request No. 05891079 (May 7,
1990); Sandy v. Department of Justice, EEOC Appeal No. 01893513 (October
19, 1989); Kotwitz v. USPS, EEOC Request No. 05880114 (October 25, 1988).
Accordingly, appellant's October 21, 1998 appeal on issues 1 through 7
is hereby DISMISSED. See 29 C.F.R. �1614.410.
Thus, the appellant's remaining allegations are that she was questioned
about a certified mail packet that she was delivering on May 23,
1997, and that she was accused of inappropriately writing comments on
an original performance evaluation. The agency dismissed these claims
for failure to state a claim.
Agencies are required to dismiss allegations involving proposals or
preliminary steps to taking a personnel action. 29 C.F.R. �1614.107(e);
57 Fed. Reg. 12643 (April 10, 1992). Discussions that do not result
in adverse personnel actions being taken are considered preliminary
steps, and, in general, allegations concerning discussions should be
dismissed. Arndt v. Department of the Navy, EEOC Request No. 05930583
(June 24, 1933). The Commission has repeatedly found that remarks
or comments unaccompanied by a concrete agency action usually are not
a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. U.S. Postal Service,
EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Service,
EEOC Request No.05940695 (February 9, 1995).
In this case, the record establishes that on May 9, 1997 the appellant
was accused of writing comments on her performance evaluation.
Appellant contends that she wrote comments on her evaluation as a form
of rebuttal. Appellant's supervisor said it was improper to write on an
original performance evaluation and that action would follow. There is
no evidence in the record that adverse personnel action followed.
Appellant also alleges unlawful employment discrimination in that she
was questioned about a certified mail packet on May 23, 1997 on her way
out for the lunch hour. The record does indicate that appellant was
questioned about the contents of a certified mail packet. The record
does not indicate that any adverse personnel action followed. Accordingly,
issues 8 and 9 are hereby DISMISSED.
In addition to issues addressed above, appellant's contention has
always been that she is a victim of a hostile work environment and
subject to continuing acts of unlawful discrimination. The agency,
in its brief in opposition to the instant appeal, does not consider the
appellant's hostile work environment claim with regard to allegations
8 and 9. We cannot address the merits of that assertion either.
Since appellant elected the U.S. District Court as the forum for her
hostile work environment claim, the Commission lacks jurisdiction to
consider the merits of allegations 8 and 9 as they relate to the hostile
work environment theory.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
11/08/1999 ____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations