01A24979_r
06-26-2003
Linda A. Colquitt v. Department of the Army
01A24979
June 26, 2003
.
Linda A. Colquitt,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A24979
Agency No. 0201C0060
DECISION
In an EEO complaint dated June 28, 2001, complainant, an Auditor, GS-12,
claimed that she was discriminated against on the bases of her race
(African-American), sex (female), and age (46) when she was denied a
promotion to the GS-13 level and she was subjected to a hostile work
environment that consisted of profanities.
By final action dated August 9, 2002, the agency dismissed the complaint
pursuant to 29 C.F.R. �1614.107(a)(1) on the grounds of failure to state
a claim. The agency determined with regard to complainant not being
promoted that three GS-13 vacancies were announced from October 2000 to
June 1, 2001. According to the agency, complainant was not referred
for these vacancy announcements because she was not entered into the
ACCESS system as of the closeout date for the positions. With regard
to three other Auditor, GS-13 positions that complainant claimed she
was not selected for, the agency determined that complainant was not
considered since there is no record of the relevant vacancy announcements.
As for complainant's claim of a hostile work environment, the agency
determined that complainant failed to establish how she was injured by
the profanities.
On appeal, complainant states that she saw an offensive and demeaning hard
copy of an e-mail on a common table. Complainant argues that the e-mail
was biased against women and contributed to a harassing, intimidating,
and hostile work environment. Complainant states that a male employee
who sat directly across from her constantly used profanity. With regard
to the promotions at issue, complainant states that on November 6, 2000,
the ACCESS system indicated that her registration was complete for the
career program and comptroller program, and that she was eligible for
referral. Complainant contends that she applied for GS-13 positions
via the ACCESS system. Complainant states that she initiated contact
with the EEO Office after three promotions were announced.
In response, the agency asserts that complainant has not offered
new concrete evidence that any of the alleged comments were either
severe or pervasive or that the comments were directed towards her.
The agency further states that complainant has not alleged that she
reported her concerns to any management official. With regard to the
nonselection issue, the agency asserts that the vacancy announcements
identified by complainant in her appeal are completely different from
those she identified in her formal complaint. The agency maintains
that the vacancies identified in complainant's appeal are not within
its audit division.
Upon review of the record, we find with regard to complainant's claim
of a hostile work environment that complainant has failed to state
a claim. The alleged incidents at issue are not of sufficient severity
or pervasiveness to constitute a hostile work environment. Moreover,
complainant has not shown that the alleged incidents were directed at her.
As for complainant's claim that she has been denied promotion to the
GS-13 level, we observe that it is not clear exactly which positions
and vacancy announcements are at issue. In her informal complaint,
complainant referenced a position that she sought with the agency in
November 2000. However, she also referenced two positions with the
Department of the Navy's Audit Service. These two positions are not
within the agency's jurisdiction since they are with the Department of
the Navy. In its decision, the agency determined that complainant was not
considered for the three Auditor, GS-13 positions that complainant claimed
she was not selected for because there is no record of such positions.
The agency further determined that complainant was not entered into the
ACCESS system at the time of the three Auditor, GS-13 positions that
were announced at the agency's Atlanta Field Office from October 2000 to
June 2001. Complainant, however, contests this position on appeal as she
states that she was in the ACCESS system and eligible for referral as of
November 6, 2000. We find that the record is unclear and insufficient
at this juncture to allow for a finding as to whether complainant has
stated a claim concerning her not being promoted to a GS-13 position.
The agency's dismissal of the claim of a hostile work environment on
the grounds of failure to state a claim was proper and is AFFIRMED.
The agency's dismissal of the claim concerning complainant not being
promoted to a GS-13 position is VACATED. This claim is REMANDED for
further processing pursuant to the Order below.
ORDER
The agency is Ordered to attempt a clarification of the specific
incidents of nonselection that are at issue in the instant complaint.
Within fifteen (15) calendar days of the agency's receipt of this
decision, the agency shall submit a written request to complainant
to state the specific position nonselections that are at issue in the
instant complaint dated June 28, 2001. The agency shall also request
that complainant provide evidence to support her contention that she was
in the ACCESS system and eligible for referral as of November 6, 2000.
Complainant shall submit a written response to the agency within fifteen
(15) calendar days of her receipt of the agency's written request.
Within sixty (60) calendar days of the date of this decision, the agency
shall either issue a notice of processing or a new decision.
A copy of the agency's new decision must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
June 26, 2003
__________________
Date