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.