01994407
11-08-1999
Stacy L. Moore, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Stacy L. Moore v. Department of the Army
01994407
November 8, 1999
Stacy L. Moore, )
Appellant, )
)
)
v. ) Appeal No. 01994407
) Agency No. AUGAFO9810I0200
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision ("FAD") concerning 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. The final agency decision was dated
April 15, 1999. The appeal was postmarked May 10, 1999. Accordingly,
the appeal is timely (see, 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed allegations
of the appellant's complaint.
BACKGROUND
The record indicates that on September 18, 1998, appellant initiated
contact with an EEO Counselor regarding her complaint. Informal efforts to
resolve her concerns were unsuccessful. On December 7, 1998, appellant
filed a formal complaint, alleging that she was the victim of unlawful
employment discrimination on the basis of race (Black), sex (female)
and reprisal(prior EEO activity) when she was:
denied access to cross training,
denied the opportunity to take on higher level tasks and activities,
which would increase her skills and experience,
given lower performance ratings, on her annual performance evaluation,
than her record warranted,
given a job description that did not accurately reflect her duties and
responsibilities,
not properly recognized or rewarded and not given performance awards
denied promotions and upgrades
not hired into positions for which she qualified, and
not promoted into positions for which she was qualified.
On April 15, 1999, the agency issued a final decision dismissing part of
appellant's complaint but accepting one allegation for investigation.
The agency accepted the issue of denial of deserved promotion/upgrade
in August 1998. We must consider whether the agency properly dismissed
allegations 1 through 8, (above).
The agency dismissed allegations (1), (2), and (3) for not being brought
to the attention of an EEO counselor. Allegations (4) and (5) were
dismissed as untimely. Allegations (6), (7), and (8) were dismissed
for failure to state a claim.
ANALYSIS AND FINDINGS
As to allegation (1), (2), and (3), denial of cross training, denial of
opportunity for higher level tasks, and lower than earned performance
ratings, we find that these allegations were properly dismissed for
not being brought to the attention of an EEO counselor. The record
reveals that the complainant made these allegations for the first time
after the counseling period and after the formal complaint was filed.
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later allegation or complaint is "like or related"
to the original complaint if the later allegation or complaint adds to or
clarifies the original complaint and could have reasonably been expected
to grow out of the original complaint during the investigation. See
Calhoun v. United States Postal Service, EEOC Request No. 05891068
(March 8, 1990); Webber v. Department of Health and Human Services,
EEOC Appeal No. 01900902 (February 28, 1990).
Allegations (1), (2), and (3) were dismissed for not being brought
to the attention of an EEO Counselor, but since the complainant was
counseled on another allegation, which was ultimately accepted, we must
also consider whether the dismissed allegations are "like or related"
to the allegation which was counseled. In the counseled allegation,
the complainant has alleged a denial of deserved promotion/upgrade.
In contrast, allegations (1), (2), and(3) involve the denial of some
career-enhancing opportunities. On one hand, the accepted allegation is
premised on the assumption that the complainant is qualified and fully
deserving of promotion. On the other hand, the instant allegations are
premised on the assertion that the complainant was rendered unqualified
for promotion by denial of career-enhancing opportunities.
A comparison of the counseled allegation and the dismissed
allegations reveal that they are not "like or related" within the
meaning of the regulation. Complainant's assertion that she was denied
promotion-qualifying experiences does not add to or clarify her contention
that she was denied a fully deserved promotion.
As to allegations (4) and (5), inaccurate job description, and non-receipt
of a performance award, we find that these allegations were properly
dismissed as untimely. 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. Allegations (4) and (5) were not brought
to the attention of an EEO counselor. The record reveals that these
allegations were made after the formal complaint was filed.
As to allegations (6), (7), and (8), not being promoted into positions,
we find that these allegations were properly dismissed for failure
to state a claim. EEOC Regulation 29 C.F.R. �1614.107(a) provides,
in relevant part, that an agency shall dismiss a complaint, or portion
thereof, 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; �1614.106(a). 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 21, 1994).
The allegations of not being hired into qualified positions fails to
specify the incidences of non-selection. As a result the agency is
unable to investigate discriminatory conduct or provide relief. The
record indicates that the agency twice requested detailed non-selection
information relative to this claim with negative results. We note that
the complainant has identified a denial of deserved promotion/upgrade
in August 1998 which was accepted for investigation.
CONCLUSION
Accordingly, we find that the agency properly dismissed allegations (1),
(2), (3), (4), (5), (6), (7), and (8).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
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. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is
received by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
11/08/1999 ____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations