01997280
02-22-2001
Marion E. Wellington, Complainant, v. Anthony J. Principi, Secretary, Departmen t of Veterans Affairs, Agency.
Marion E. Wellington v. Department of Veterans Affairs
01997280
02-22-01
.
Marion E. Wellington,
Complainant,
v.
Anthony J. Principi,
Secretary,
Departmen
t of Veterans Affairs,
Agency.
Appeal No. 01997280
Agency No. 99-3683
DECISION
On September 29, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) concerning her complaint
that the agency discriminated against her 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.<1> The appeal is accepted by the Commission in accordance with
29 C.F.R. � 1614.405.
Complainant, a member of the clergy, was a participant in the agency's
Clinical Pastoral Education Program. She concluded the program in 1998.
In the summer of 1999, A-1, Coordinator, Chaplin/Pastoral Care, invited
her to participate in the program as a support person. On August 20,
1999, complainant filed a complaint alleging that she was discriminated
against due to her race (Black), sex (female) and disability (left foot
amputation) when:
1) in August and November 1998, she learned that, in March 1998,
a Catholic priest was hired for a Chaplin position that she sought.
In addition, she, in the fall of 1998, discovered that another member
of the clergy was employed by the agency for a second position; and
2) on June 9, 1999, she was insulted by A-1 when she brought treats to the
office for the staff and he asked, �Where is all this coming from?�
The agency issued a FAD dismissing claim 1 on the grounds that complainant
sought EEO counseling in an untimely manner. Claim 2 was dismissed on
the grounds that it failed to state a claim. This appeal followed.
Claim 1
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part,
that the agency shall dismiss a complaint or a portion of a complaint that
fails to comply with the applicable time limits contained in � 1614.105.
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.
The record indicates that complainant contacted an EEO counselor on July
19, 1999; however, by the fall of 1998, she was aware of the matters at
issue in claim 1. When asked why she failed to contact an EEO counselor
within the specified time frame, complainant indicated that she tried
to get a job at other institutions and wanted A-1 to provide her with a
good reference. According to complainant, she did not want to alienate
him by filing a complaint. Based on our review of the record, we find
that complainant has not provided an adequate justification for extending
the time limitation period.
Consequently, we AFFIRM the dismissal of this claim.
Claim 2
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part,
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. 29 C.F.R. � 1614.103. 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 a remedy. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 22, 1994).
The Commission has consistently held that a remark or comment
unaccompanied by concrete action is not a direct and personal deprivation
sufficient to render an individual aggrieved for the purposes of Title
VII. Henry v. USPS, EEOC Request No. 05940695 (February 9, 1995). Thus,
the alleged comment of A-1, because it was unaccompanied by any concrete
action, would not have made complainant aggrieved. Furthermore, the
Commission does not find that the one incident described by complainant
was sufficiently severe or pervasive to alter the conditions of her
employment such as to state a claim of harassment. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
Accordingly, the agency's decision with respect to claim 2 is hereby
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
____02-22-01__________________________
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
______________________________
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.