01a00600
02-29-2000
Valerie B. Jimenez, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Valerie B. Jimenez, )
Complainant, )
)
v. ) Appeal No. 01A00600
) Agency No. 09906J0690
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
On October 27, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) issued on October 4, 1999,
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 current appeal
in accordance with EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed the
present case for failure to state a claim.
BACKGROUND
For the relevant period of time, complainant was employed as a Medical
Technologist, GS-0644-09, at the Walter Reed Army Medical Center.
Complainant states that she was retaliated against for joining the Air
force Reserves when: On June 10, 1999, complainant was issued a letter
of proposed suspension; and she was harassed by her supervisor who issued
the letter without first conducting an investigation.
Believing that she was the victim of discrimination, complainant, on
June 28, 1999, initiated contact with an EEO Counselor. During the
counseling period, complainant stated that she was issued a letter of
proposed suspension and harassed by her supervisor.
Unable to resolve the above matter informally, complainant filed a formal
complaint on September 7, 1999, claiming that she was the victim of
unlawful employment discrimination on the basis of reprisal ( joining
the Air Force Reserves). The complaint was comprised of the matters
for which complainant underwent EEO counseling, discussed above.
On October 4, 1999, the agency issued a final decision dismissing
complainant's complaint for failure to state a claim. Specifically,
the agency found that joining the Air Force Reserve is not a protected
activity under Title VII.
ANALYSIS AND FINDINGS
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). Furthermore,
EEOC Regulation 29 C.F.R. � 1614.101(b) provides that no person shall
be subject to retaliation for opposing any practice made unlawful by
Title VII, the ADEA, the Equal Pay Act (EPA), or the Rehabilitation
Act, or for participating in any stage of administrative or judicial
proceedings under those statutes. In order to establish discrimination
based on retaliation, an individual must be able to show that he or she
engaged in prior EEO activity based on 29 C.F.R. � 1614.101(b).
In the present case, the Commission finds that complainant has not
participated in prior EEO proceedings and that her claim of reprisal is
not within the purview of the EEO statutes. Since the complainant has not
alleged a protected EEO activity, the Commission finds that the agency
properly dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)
for failure to state a claim.
CONCLUSION
For the reasons set forth herein, the Commission hereby AFFIRMS the
decision of the agency dismissing the present complaint for failure to
state a claim.
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 29, 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 Assistant1On 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.