01a41726_r
01-05-2005
Marilyn Jones, Complainant, v. R. L. Brownlee, Acting Secretary, Department of the Army, Agency.
Marilyn Jones v. Department of the Army
01A41726
January 5, 2005
.
Marilyn Jones,
Complainant,
v.
R. L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A41726
Agency No. ARJACK03JUN0007
DECISION
Complainant initiated contact with the agency's EEO Office on June
2, 2003. On August 21, 2003, complainant filed a formal EEO complaint
wherein she claimed that she was discriminated against on the bases of
her race (Black), sex (female), and in reprisal for her previous EEO
activity under Title VII when:
1. The Colonel treated her differently than other employees when he
did not assist her in being reassigned, did not intercede on her behalf
concerning her performance appraisal for Fiscal Year 2000, and did nothing
when she complained that someone broke her office keys in February 2003.
2. The EEO Office did not process her prior complaints properly and
falsified information in the investigation of Agency No. AKGVFO0108B0020
in April 2002.
3. The EEO Office is not processing Agency No. ARCEJACK03OCT0001 in
accordance with regulations and the Labor Counsel acted unprofessionally
during investigation of this complaint.
By decision dated December 18, 2003, the agency dismissed claim (1)
of the complaint pursuant to 29 C.F.R. �1614.107(a)(2) on the grounds
that complainant failed to initiate contact with an EEO Counselor in a
timely manner. The agency determined that complainant's EEO contact in
June 2003 was more than 45 days after the most recent incident occurred,
i.e., someone breaking complainant's office keys in February 2003.
The agency noted that complainant was involved in the EEO counseling
process with regard to other issues from July 2002 through October
2002 and from December 2002 through March 2003. The agency noted that
complainant had the opportunity to raise the issues set forth in claim
(1) during these contacts with the EEO Counselor, but she failed to do so.
With regard to claim (2), the agency dismissed this claim pursuant to 29
C..F.R. �1614.107(a)(8) on the grounds that it concerns dissatisfaction
with the processing of a previously filed complaint. The agency also
dismissed this claim pursuant to 29 C.F.R. �1614.107(a)(1) on the grounds
that it involves the same claim that is pending or previously decided
by the agency. The agency stated that final actions were issued on
February 27, 2003, with regard to complainant's complaints, Agency
No. AKGVFO9911J0010, Agency No. AKGVFO0108B0020, and AKGVFO0109B0060
and that the matter set forth in claim (2) of the instant complaint
was raised during the processing of the previous complaints. With
respect to claim (3), the agency dismissed this claim pursuant to
29 C.F.R. �1614.107(a)(8) on the grounds that this claim concerns
dissatisfaction with the processing of a previously filed complaint.
On appeal, complainant contends that prior to her contact of an EEO
Counselor in June 2003, she submitted a request dated September 23,
2002, for an EEO Counselor concerning the Colonel. Complainant maintains
that on December 10, 2002, she spoke with an EEO Specialist regarding
the Colonel. Complainant states that pursuant to a third request for an
EEO Counselor concerning the Colonel, she was assigned an EEO Counselor
on March 18, 2003. According to complainant, on April 17, 2003, she
received an e-mail message from the EEO Counselor stating that he would
no longer be the assigned EEO Counselor regarding her complaint against
the Colonel. With respect to claim (3), complainant maintains that no
prior complaint was filed regarding the Labor Counselor.
In response, the agency asserts with regard to claim (1) that complainant
was aware of the alleged discriminatory actions on or about February 2003.
The agency notes that complainant filed a security report concerning her
desk being broken into and her keys being bent. The agency states that
complainant stated to the investigating officer that she believed the
Colonel was involved. According to the agency, the investigation was
concluded on or about March 12, 2003. In support of its position, the
agency submits a statement from the Discrimination Complaints Manager.
The Manager states that complainant was in EEO counseling from July 2002
through October 2002 and from December 2002 through March 2003, but
she did not raise issues concerning the Colonel with an EEO Counselor
at these times. With regard to claims (2) and (3), the agency asserts
that dissatisfaction with the EEO process must be raised within the
underlying complaint rather than as a new complaint. The agency states
that complainant is expressing dissatisfaction with the processing of
previous complaint and a complaint that is currently ongoing and pending
with the agency.
Upon review of the record, the Commission finds that the agency properly
dismissed claim (1) on the grounds that complainant failed to initiate
contact with an EEO Counselor in a timely manner. Complainant has
offered no evidence to support her argument that she raised the alleged
matters with an EEO Counselor prior to her June 2003 contact of an
EEO Counselor. In light of the fact that the most recent incident
occurred in February 2003, we find that complainant's contact of an
EEO Counselor in June 2003 was after the expiration of the 45-day
limitation period for contacting an EEO Counselor. As for claims (2)
and (3), EEOC Regulation 29 C.F.R. �1614.107(a)(8) provides that an
agency shall dismiss claims alleging dissatisfaction with the processing
of a previously filed complaint. Dissatisfaction with the EEO process
must be raised within the underlying complaint, not as a new complaint.
See Management Directive 110 (MD-110), 5-23, 5-25 - 5-26 (November 9,
1999). The Commission finds that complainant is alleging dissatisfaction
with the processing of previously filed complaints and thus these claims
were properly dismissed pursuant to 29 C.F.R. �1614.107(a)(8).<1>
Accordingly, the agency's decision dismissing complainant's complaint
was proper and 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
January 5, 2005
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1In light of our affirmance of the dismissal of claim (2) on this grounds,
we need not address the agency's alternative grounds for dismissal.