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.