Patricia S. Mims, Complainant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionMay 6, 2000
01986353 (E.E.O.C. May. 6, 2000)

01986353

05-06-2000

Patricia S. Mims, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.


Patricia S. Mims v. Department of Justice

01986353

May 6, 2000

Patricia S. Mims, )

Complainant, )

)

v. ) Appeal No. 01986353

) Agency No. F-97-4974

Janet Reno, )

Attorney General, )

Department of Justice, )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated August 6, 1998, dismissing a portion of her 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.<1> Volume 64

Fed. Reg. 37, 644, 37, 656 (1999)(to be codified and hereinafter referred

to as 29 C.F.R. � 1614.107(b)) provides that where an agency decides

that some but not all of the claims in a complaint should be dismissed,

the agency shall notify the complainant of its determination; however

this determination is not appealable until final action is taken on the

remainder of the complaint. In the present case, however, it appears

that the remainder was the subject of a final agency decision on March 4,

1999, rendering those claims pending herein the only remaining viable

matters and ripe for review on appeal.

The agency framed her complaint as alleging that she was subjected to

discrimination on the bases of race (Black), favoritism, and in reprisal

for participating in protected activity, when she was not afforded the

opportunity to compete for a promotion to Accounting Analyst GS-13,

which became effective on or about November 13, 1996.

By letter dated November 18, 1997, the agency accepted complainant's

complaint for investigation, with the exception of her claimed basis of

favoritism. The agency's letter also gave complainant an opportunity to

indicate if she disagreed with the issue accepted for investigation, and

to indicate if she believed the complaint had otherwise been properly

identified. In her November 26, 1997 response, complainant again

indicated that favoritism should be accepted as a basis, but did not

otherwise express disagreement with the issue identified by the agency.

The agency decision here at issue subsequently dismissed complainant's

claimed basis of favoritism for failure to state a claim. In addition, to

the extent complainant was alleging them, the agency's decision dismissed

two supplementary issues (identified from attachments to complainant's

formal complaint) regarding complainant's reassignment in October 1995 and

the agency's alleged failure to issue her a performance appraisal report

(PAR) for 1996. Specifically, the agency determined for these issues

that complainant failed to contact an EEO Counselor within forty-five

days of her reassignment, and that she did not consult an EEO Counselor

concerning the 1996 PAR.

Upon review, the Commission finds that complainant's claimed basis of

favoritism was properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656

(1999)(to be codified and hereinafter referred to as EEOC Regulation 29

C.F.R. � 1614.107(a)(1)). Under EEOC Regulations, favoritism is not a

recognized basis for an EEO complaint of discrimination. See 29 C.F.R. �

1614.103(a). In addition, to the extent complainant's appeal contests

the agency's dismissal of other issues, we also find that complainant's

claims concerning her reassignment and the agency's failure to issue a

PAR have been properly dismissed. The record indicates that complainant

did not initiate contact with an EEO Counselor until December 24, 1996,

which is beyond the forty-five day limitation period, and that she

did not raise the matter of her 1996 PAR, or a matter like or related,

with the EEO Counselor. See 64 Fed. Reg. 37,644, 37,656 (1999)(to be

codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2)).

Accordingly, the agency's decision dismissing portions of complainant's

complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

May 6, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.