Shealin L. Smoot, Complainant,v.Robert M. Gates, Secretary, Department of Defense, (Defense Intelligence Agency), Agency.

Equal Employment Opportunity CommissionJun 30, 2009
0120091455 (E.E.O.C. Jun. 30, 2009)

0120091455

06-30-2009

Shealin L. Smoot, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Intelligence Agency), Agency.


Shealin L. Smoot,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense,

(Defense Intelligence Agency),

Agency.

Appeal No. 0120091455

Agency No. DIA-00004-2009

DECISION

Complainant filed a timely appeal with this Commission from the agency's

final decision dated January 21, 2009, dismissing his complaint of

unlawful employment discrimination in violation of Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29

U.S.C. � 621 et seq. Upon review, the Commission finds that complainant's

complaint was properly dismissed pursuant to 29 C.F.R. �� 1614.107(a)(1) &

(2).

On October 31, 2008, complainant initiated EEO contact alleging that

the agency subjected her to a hostile work environment, between May and

October 2008, on the bases of race (African American), color (Black), and

age (over 40). To support her claim of harassment, complainant alleged

that her supervisor (S1) (1) on May 15, 2008, denied her promotion to the

Band 3 level, (2) on June 10, 2008, counseled her about her performance

and tasked her with duties for a 90-day evaluation, (3) in June 2008,

accused her of entering travel orders into a financial system with

insufficient funding, (4) on September 14, 2008, withheld her promotion to

Band 3, and (5) in June and October 2008, made intimidating, disparaging

and condescending remarks to complainant about her performance.

In its final decision, the agency dismissed (1) - (4) pursuant to 29

C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact and (5)

pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.

The instant appeal from complainant followed. Specifically, on appeal,

complainant stated that (1) and (4) are timely because they are recurring

violations of failure to promote, (2) and (3) are harassment including

several incidents, one of which was within the 45-day time-frame, and

(5) renders her aggrieved.

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, unless the agency extends the time limits in accordance

with � 1614.604(c). Regulation 29 C.F.R. � 1614.105(a)(1) provides

that an aggrieved person must initiate contact with an EEO 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.

A complainant alleging a hostile work environment will not be time barred

if all acts constituting the claim are part of the same unlawful practice

and at least one act falls within the filing period. See National

Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). In the

case at hand, we find that complainant alleged hostile work environment

harassment when she initiated contact with an EEO counselor on October 31,

2008, and that she alleged a continuous failure to promote and a negative

impact on the terms and conditions of her employment by S1 as evidence

to support her claim of harassment. However, we find further that the

discrete act of her non-promotions falls on May 15 and September 14,

2008, which falls outside the 45-day filing period and renders untimely

complainant's claim. We conclude that the non-discrete acts (offensive

statements, etc), even those that are timely, can not render the discrete

acts (failure to promote) timely and the non-discrete acts alone fail

to state a claim under EEOC regulations.1 After a careful review of

the record, we AFFIRM the final agency decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with the

Court 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 30, 2009

__________________

Date

1 See Diaz v. Department of the Air Force, EEOC Request No. 05931049

(April 21, 1994; see Harris v. Forklift Systems, Inc., 510 U.S. 17, 21

(1993).

??

??

??

??

2

0120091455

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120091455