Zakiyyah Shakoor, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 25, 1999
01993255 (E.E.O.C. Oct. 25, 1999)

01993255

10-25-1999

Zakiyyah Shakoor, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Zakiyyah Shakoor v. Department of the Army

01993255

October 25, 1999

Zakiyyah Shakoor, )

Appellant, )

)

v. ) Appeal No. 01993255

) Agency No. ANBKFO9812I0460

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency 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 final agency decision was received by

appellant on February 19, 1999. The appeal was postmarked March 12, 1999.

Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is

accepted in accordance with EEOC Order No. 960, as amended.

Appellant contacted an EEO Counselor on July 17, 1998, regarding

allegations of discrimination. Informal efforts to resolve her concerns

were unsuccessful.

On December 1, 1998, appellant filed a formal complaint alleging that

she was the victim of unlawful employment discrimination on the bases

of race, religion, and sex. Appellant's complaint was comprised of the

following four allegations:

(1) On March 15, 1998 she was denied the opportunity for promotion;

(2) On September 30, 1998 she was denied the opportunity for training;

(3) On June 2,1998, she was placed on the excess list; and

(4) On November 4, 1998, her informal complaint of July 1998, that

preceded her filing of the instant complaint, was improperly handled by

the EEO Counselor.

On February 16, 1999, the agency issued a final decision (FAD) accepting

for investigation allegation (2) of appellant's complaint, but dismissing

allegation (1) for failure to timely initiate contact with an EEO

Counselor and allegations (3) and (4) for failure to state a claim.

Regarding allegation (1), the agency determined that appellant's July

17, 1998 contact with the EEO office, regarding allegation (1) that

purportedly occurred on March 15, 1998, was well beyond the applicable

time period for seeking counseling. Regarding allegation (3), the agency

determined that appellant had not been harmed with respect to a term,

condition, or privilege of employment by the agency's action of placing

her on the excess list. The agency indicated that no action has been

taken against appellant and the duties of her position, as well her

salary, have not been affected by her inclusion on the excess list.

Regarding allegation (4), the agency found that appellant had failed

to demonstrate how she had been aggrieved by the alleged conduct of the

agency.

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the EEO 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.

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.

The Commission agrees with the agency's decision to dismiss allegation

1 for untimely EEO Counselor contact. Appellant's July 17, 1998 EEO

contact was 124 days after the incident described in allegation (1) of

appellant's complaint. Appellant does not allege that she was unaware

of the time limitations for Counselor contact, nor does she indicate that

she was prevented for any reason from timely seeking counseling regarding

her allegation of non-promotion. Appellant fails to offer any persuasive

explanation for her delay in seeking EEO assistance concerning allegation

(1). We find therefore, that the agency's decision dismissing allegation

(1) was proper.

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).

Appellant alleges in allegation (3) that she was subjected to

discrimination by the agency when it placed her on the excess list on June

2, 1998. In her complaint, appellant stated that the agency's action

was discriminatory because a white female secretary with less seniority

than her was not similarly placed on the excess list. In its FAD, the

agency maintains that no action has been taken against appellant with

regard to the excess list and indicates that appellant's position may

well be taken off the list as funding becomes available. The Commission

has long held that placement on such lists does not render appellant an

aggrieved employee within the meaning of EEOC Regulations. See Tence

v. Department of Agriculture, EEOC Request No. 05930993 (May 4, 1994).

We find therefore that the agency's decision dismissing allegation (3)

was proper.

In allegation (4), appellant alleged discrimination in the improper

handling of her July 1998 informal complaint including, inter alia, the

EEO Counselor's purported failure to keep the investigation confidential.

The Commission finds that allegation (4) addresses improper processing in

the present complaint. EEO Management Directive 110 requires only that

the agency refer the complainant to the agency official responsible for

the quality of complaint processing, and that those individuals earnestly

attempt to resolve dissatisfaction with the complaints process as early

as possible. See EEO Management Directive 110 (4-8). EEO Management

Directive 110 provides that the agency must process only those

complaints in which the individual alleges that he or she was treated

differently, or is being adversely affected by a policy or practice

having a discriminatory effect on the processing of his or her complaint.

We note that appellant failed to allege that the treatment afforded her

was different than that afforded others. Appellant also failed to identify

a policy or practice having a discriminatory effect on the processing of

her complaint. Consequently, the agency's decision to dismiss allegation

(4) was proper because the matter fails to state a separate processable

claim.<1> Accordingly, the agency's decision to dismiss allegation (1) for

untimely EEO Counselor contact, and allegations (3) and (4) for failure

to state a claim, is hereby 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:

10/25/1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1Furthermore, we note that at this point in the processing of appellant's

present complaint, the EEO Counselor's purported failure to maintain

appellant's anonymity would constitute harmless error, because

appellant's complaint has reached the formal stage and anonymity is no

longer available. The agency is hereby advised, however, to insure that

its EEO officials are aware of the regulations and the EEO rights of

its employees.