Valerie D. Fashion-Dawson, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 9, 1999
01983838 (E.E.O.C. Sep. 9, 1999)

01983838

09-09-1999

Valerie D. Fashion-Dawson, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Valerie D. Fashion-Dawson v. Department of the Army

01983838

September 9, 1999

Valerie D. Fashion-Dawson, )

Appellant, )

) Appeal No. 01983838

v. ) Agency No. F0980210150

)

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 FAD was dated March

12, 1998, and received by appellant on March 19, 1998. The appeal was

postmarked on April 15, 1998. Accordingly, the appeal is timely (see

29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC Order

No. 960.001, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed a portion

of appellant's complaint for failure to state a claim.

BACKGROUND

Appellant filed a formal complaint on February 3, 1998, alleging

discrimination on the bases of race (Black) and reprisal (prior EEO

activity) when:

(1) on December 8, 1997, her supervisor told her that she was taking

disciplinary action against appellant for taking excessively long breaks;

(2) on December 8, 1997, her supervisor told her that she was being

watched;

(3) on December 9, 1997, two employees in the library, where appellant

worked, refused to cover the front desk so that she could go to a

scheduled EEO Counselor meeting;

(4) on December 16, 1997, during a training session entitled

"Consideration of Others," appellant was told that she must hand over the

tape that she was recording the session with or be arrested by the MPs;

(5) from December 9, 1997 through December 11, 1997, an individual was

sent to watch the library and make sure that there was no trouble when

appellant's supervisor was absent from the library;

(6) on November 25, 1997, after appellant requested reassignment out

of the library, individuals at the Civilian Personnel Advisory Center

(CPAC) offered appellant a temporary work detail because they did not

have any reassignment positions available.

We note that appellant turned down the offer for a temporary detail

(allegation 6), and also that appellant maintained that the above listed

allegations were part of a pattern of mistreatment of minorities in her

workplace.

In its FAD, the agency accepted allegations (1) through (5) of the

complaint and dismissed allegation (6) for failure to state a claim.

Specifically, the agency said that allegation (6) failed to state a

claim under EEOC Regulation 29 C.F.R. �1614.107(a), and because it was

merely a preliminary step under EEOC Regulation 29 C.F.R. �1614.107(e).

This appeal followed.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency

shall dismiss a complaint which fails to state a claim pursuant to

29 C.F.R. �1614.103. 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, 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 Air Force,

EEOC Request No, 05931049 (April 21, 1994). To establish that he is an

"aggrieved employee" and therefore states a claim under the regulations,

a complainant must allege that he was injured in fact.

We find that appellant's allegation fails to state a claim because she has

failed to show how she was injured by an offer of a temporary work detail.

Appellant declined the offer and experiences no repercussions from that

action.

CONCLUSION

Accordingly, the decision of the agency was proper and is AFFIRMED.

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. 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 (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:

September 9, 1999

______________ __________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations