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.