Theresa Winston, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionFeb 14, 2000
01982657 (E.E.O.C. Feb. 14, 2000)

01982657

02-14-2000

Theresa Winston, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Theresa Winston v. Department of Defense

01982657

February 14, 2000

Theresa Winston, )

Complainant, )

)

v. )

) Appeal No. 01982657

William S. Cohen, ) Agency No. XQ-97-032

Secretary, )

Department of Defense, )

(Defense Logistics Agency), )

Agency. )

____________________________________)

DECISION

On February 27, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) 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.<1> The

Commission accepts the appeal in accordance with EEOC Order No. 960,

as amended.

On May 29, 1997 complainant contacted the EEO office regarding claims

of discrimination based on race and sex. Informal efforts to resolve

complainant's concerns were unsuccessful. Accordingly, on July 9, 1997,

complainant filed a formal complaint.

The agency framed complainant's claims as follows:

1) On May 29, 1997, complainant informed her supervisor that she had

taken necessary actions regarding the contracts with expiring funds.

Complainant's supervisor informed complainant that the Team Leader

had informed him that complainant had not requested the vouchers for

the contracts. Later complainant found out that the Team Leader only

needed to report the status of the contracts, which he had already

received from Person A. Complainant was misled by her supervisor;

2) On April 8, 1997, complainant was informed by Person B that she must

file additional paperwork at the end of the 45 days receiving worker's

compensation, in order to continue

to be paid under her worker's compensation claim. Complainant was later

told by her supervisor that additional paperwork was not needed until

her treatments were completed. Complainant's supervisor attempted to

misinform her;

3) On March 21, 1997, complainant met with her supervisor, regarding

delivery of an ergonomic chair, which complainant requested, February 18,

1997, but which she had not as yet received. There were white employees

who had received ergonomic chairs within two weeks of their requests.

Complainant's supervisor stated that the delay was due to DCMC Van Nuys

having to approve the request;

4) On March 12, 1997, complainant's supervisor returned her time sheet

with a note telling her he would not approve her request to continue

working five hours per day, four days per week. This schedule was

based on complainant's previous schedule, with her doctor's approval.

Complainant's supervisor requested she work five days per week, five

hours per day;

5) On March 7, 1997, complainant's supervisor told complainant that she

was not permitted to see a copy of her CA7 worker's Compensation form;

6) On February 27, 1997, complainant's supervisor approached complainant

while she was in a doorway holding a cup of water and asked, "how is

your arm? I guess that's not the hurt one."; and,

7) On February 27, 1997, complainant suffered an injury as the result

of a co-worker slamming a door on her. Complainant's supervisor was

insensitive to complainant and showed favoritism toward the co-worker

who injured complainant.

The agency issued a FAD, dated January 26, 1998, dismissing claims 1, 2,

and 3 for failure to state a claim and claims 4, 5, 6, and 7 for untimely

counselor contact. Specifically, the agency indicated that complainant

failed to establish that she was harassed when her supervisor attempted to

misinform her, delayed delivery of a chair and requested complainant work

5 days a week. Further, the FAD stated that these issues were resolved

through Steps 1 and 2 of complainant's Negotiated Bargaining Unit.

Regarding claims 4, 5, 6 and 7, the FAD noted that the most recent

incident occurred on March 12, 1997 but that complainant did not contact

a counselor until May 29, 1997.

On appeal, complainant argues that her counselor contact was timely.

Complainant contends that she tried to contact Counselor A as early as

March 25, 1997, but that Counselor A did not respond

to her calls. Thereafter, complainant filed a grievance and, during a

meeting with her union

representative and agency officials, she was told that her discrimination

issues should be addressed through EEO. On May 12, after "further

inquiry", complainant was told to call the EEO office.

In response, the agency contends that complainant's contact was not

timely, citing an affidavit by Counselor A stating that she was not

contacted by complainant during the earlier time period. Specifically,

Counselor A stated that she habitually records in writing any voice

mails she receives so that she can return the telephone calls; and that

she maintains two calendars, neither of which reflects any contacts by

complaint during March or April 1997. Further, the agency notes that

complainant's complaint states that contact was made on June 2, 1997.

With respect to claims 1 and 2, the agency maintains that the alleged

events "are nothing more than a typical exchange between an employee and

a supervisor." Moreover, complainant has not alleged that she suffered

a harm or loss as a result of the conversations (claims 1 and 2) or the

delay in obtaining a chair (claim 3).

Claims 1, 2, and 3

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an

agency shall dismiss a complaint 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, .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

22, 1994).

Complainant contends that her supervisor misled her regarding the

necessary actions for contracts with expiring funds (claim 1); attempted

to misinform her regarding the necessary paperwork for her worker's

compensation claim (claim 2); and delayed the delivery of her ergonomic

chair (claim 3). We find that complainant has failed to allege that

she suffered a harm or loss regarding a term, condition, or privilege

of her employment as a result of the alleged actions by her supervisor.

Complainant is not rendered an "aggrieved" employee by the alleged events.

We also find that claims 1, 2, and 3 are not sufficient to state a claim

of discriminatory harassment. See Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997). Accordingly, the agency's

decision to dismiss claims 1, 2, and 3 is AFFIRMED.

Claims 4, 5, 6 and 7

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.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Howard v. Department of the

Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time

limitation is not triggered until a complainant reasonably suspects

discrimination, but before all the facts that support a charge of

discrimination have become apparent.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

Here, the alleged events occurred on February 27, 1997, March 7, 1997,

and March 12, 1997. However, the record indicates that complainant did

not contact a counselor until May 29, 1997, beyond the forty-five day time

limitation. On appeal, complainant contends that she attempted to contact

Counselor A in March but received no response. Complainant also states

that on May 12 she was given the name of another individual to contact at

the EEO office. We are not persuaded by complainant's arguments and find

that she should have contacted the EEO counselor within forty-five days of

the alleged event. Therefore, we find that complainant has not provided

sufficient reason to extend the time limitation. Accordingly, the

agency's dismissal of claims 4, 5, 6, and 7 was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

February 14, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

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.