01983272
06-10-1999
Thelma W. Morgan, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Information Systems) Agency), Agency.
Thelma W. Morgan v. Department of Defense
01983272
June 10, 1999
Thelma W. Morgan, )
Appellant, )
)
v. ) Appeal No. 01983272
) Agency No. UA-98-003
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Information Systems)
Agency), )
Agency. )
______________________________)
DECISION
On February 25, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her attorney of record
on March 2, 1998, pertaining to 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. In her
complaint, appellant alleged that she was subjected to discrimination
on the bases of race (Black), sex (female), and age (DOB 6/26/46) when:
Appellant was denied promotions and awards; and
On December 3, 1997, during a mid-year performance review, appellant's
supervisor made a comment about her attitude.
The agency dismissed allegation (1), pursuant to 29 C.F.R. �1614.107(b),
on the grounds that it raised a matter that was not brought to the
attention of an EEO Counselor and was not like or related to a matter
that was brought to the attention of an EEO Counselor, and allegation
(2) pursuant to EEOC Regulation 29 C.F.R. �1614.107(a), for failure to
state a claim, or, alternatively, pursuant to 29 C.F.R. �1614.107(e),
on the grounds that it was rendered moot.
With regard to allegation (1), the agency determined that although
appellant mentioned the denial of past promotions and awards during
counseling, appellant indicated that these matters were merely provided as
background for the instant complaint. In support of this determination,
the agency noted that only allegation (2) was identified in pre-complaint
counseling, and the record contains a notation by the EEO Counselor
indicating that appellant identified these issues as background
information.
The agency also determined that because the comments identified in
allegation (2) were unaccompanied by any agency action, they did not
render appellant aggrieved for the purposes of the EEOC regulations.
In the alternative, the agency concluded that because both appellant
and her supervisor transferred to another work location, allegation (2)
was rendered moot.
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).
In the instant case, appellant provided no statement or evidence rebutting
the agency's contention that she raised the past denial of promotions
and awards only as background information. In discussing allegation (2),
the Counselor's Report states "[a]s background information, [appellant]
adds that since he became her supervisor, he has denied her promotions
and awards because of his untruthful disregard for her race, age, and
sex." The only allegation raised and counseled involved the comments
of December 3, 1997. Moreover, we find that the denial of promotions
and awards is factually distinct from the comments of her supervisor,
and could not have reasonably been expected to grow out of the original
complaint during the investigation. Consequently, we find that allegation
(1) was properly dismissed pursuant to 29 C.F.R. �1614.107(b).
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 Commission has repeatedly found that remarks or comments unaccompanied
by a concrete agency action are not a direct and personal deprivation
sufficient to render an individual aggrieved for the purposes of
Title VII. See Backo v. U.S. Postal Service, EEOC Request No. 05960227
(June 10, 1996); Henry v. U.S. Postal Service, EEOC Request No. 05940695
(February 9, 1995). As the record in this case discloses no agency
action was taken as a result of the comments made to appellant about
her attitude, we find that allegation (2) was properly dismissed for
failure to state a claim.<1>
Accordingly, the agency's final decision is AFFIRMED for the reasons
set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant 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:
June 10, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1Since we are affirming the agency's dismissal of allegation (2) on the
grounds of failure to state a claim, we will not address the agency's
alternative grounds for dismissal, i.e., that it was rendered moot.