01A32964_r
02-10-2004
Angela D. Stevens, Complainant, v. Colin L. Powell, Secretary, Department of State, Agency.
Angela D. Stevens v. Department of State
01A32964
February 10, 2004
.
Angela D. Stevens,
Complainant,
v.
Colin L. Powell,
Secretary,
Department of State,
Agency.
Appeal No. 01A32964
Agency No. 03-04
DECISION
Complainant appealed to this Commission from the agency's March 13, 2003
dismissal of her employment discrimination complaint. In her formal
complaint, complainant alleged discrimination on the bases of race
(African-American), sex (female), color (black), and age when:
Complainant served as Acting Branch Chief for the Administrative Services
Division and Contract Administration and Procurement at the GS-13 level
from October 4, 1999 through April 8, 2002, but management failed to both
complete the necessary paperwork documenting that fact and to provide
complainant with compensation at the GS-13 level during that time.
Complainant was deemed �not qualified� for the Branch Chief position
when she applied under Vacancy Announcements ARO-196 and ARO-115628.
Management requested that complainant train the new Branch Chief in the
duties and responsibilities of her position.
Initially, the agency accepted complainant's employment discrimination
complaint for investigation on December 9, 2002. During the
investigation, the agency discovered that complainant initially received
a temporary detail and promotion for working as a GS-13. The detail
expired on October 16, 2000, and the Office of Human Resources (HR)
refused to extend the detail or continue to pay complainant at the GS-13
level, although complainant continued to perform the duties of an Acting
Branch Chief. The agency also found that complainant learned she was
not considered qualified for the Branch Chief permanent promotions on
August 29, 2001. When the successful applicant arrived at the agency,
complainant was then asked to train the new Branch Chief on her duties.
After concluding its investigation, the agency issued its March 13, 2003
final decision to dismiss complainant's complaint. Specifically, the
agency dismissed claims (1) and (2) for untimely counselor contact, and
claim (3) for failure to state a claim. With respect to claim (1), the
agency noted that complainant should have suspected discrimination when
HR refused to extend complainant's temporary promotion, and it expired.
The agency found that complainant first contacted an EEO Counselor on
May 8, 2002, more than forty-five (45) days after complainant's detail
expired on October 16, 2000. In claim (2), the agency noted that
complainant was notified she was not qualified for permanent promotion
to the GS-13 Branch Chief position on August 29, 2001, also more than
45 days before complainant contacted an EEO Counselor. Finally, the
agency explained that complainant suffered no tangible harm to a term,
condition, or privilege of her employment when she was asked to train
the new Branch Chief.
On appeal, complainant identifies all of her contacts regarding claim
(1). On March 27, 2001, she met with her union representative concerning
her detail. On April 4, 2001, she met with HR concerning the same matter.
On October 12, 2001, she met with an EEO professional. Soon thereafter,
she had a series of meetings with officials involved in the grievance
and internal mediation processes. Complainant notes that she first
contacted an EEO Counselor on May 2, 2002. With respect to claim (3),
complainant notes that it was an �insult to her intelligence� to train
someone for duties she had been considered unqualified to perform.
In response, the agency admits that complainant first met with an official
logically connected to the EEO process on October 12, 2001, but claims
she never expressed an intent to pursue her complaint until May 2002.
To support its contention that complainant never expressed an intent
to pursue an EEO complaint on October 12, 2001, the agency notes that
complainant subsequently met with both union and internal mediation
personnel to discuss their respective resolution processes.
Complainant must raise claims of discrimination within 45 days of
their occurrence. See 29 C.F.R. � 1614.105(a)(1). The agency may
dismiss claims that fail to comply with this time limit. See 29
C.F.R. � 1614.107(a)(2). 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. Further,
in order to establish EEO Counselor contact, an individual must contact
an agency official logically connected to the EEO process and exhibit an
intent to begin the EEO process. Allen v. United States Postal Service,
EEOC Request No. 05950933 (July 9, 1996).
The record includes an �Initial Contact Data Sheet,� completed by the EEO
Counselor, indicating that complainant first contacted the Counselor to
pursue her claim on May 2, 2002, and signed by complainant and the EEO
Counselor on May 8, 2002. The record includes no evidence of an October
12, 2001 contact with an EEO official, nor any proof that complainant
expressed an intent to begin the process during any such contact.
Therefore, the Commission finds that complainant's initial EEO Counselor
contact, for purposes of timeliness, occurred on May 2, 2002.
With respect to claim (1), the Commission finds that complainant first
should have suspected discrimination on October 21, 2000. Complainant
and her supervisors requested that her official detail be extended,
and her temporary pay at the GS-13 level be continued. The agency
refused, and issued complainant a SF-50 Notice of Personnel Action to
return complainant to her GS-12 position and pay. This notice became
effective on October 15, 2000, but was not approved until October 21,
2000. Complainant's May 2, 2002 counselor contact, more than 45 days
thereafter, was untimely.
In claim (2), complainant should have suspected discrimination upon
receipt of the notice that HR deemed her application unqualified for
the Branch Chief position. This notice was dated August 29, 2001, and
complainant does not deny having received it. Therefore, complainant
also failed to timely raise claim (2) with an EEO Counselor.
EEOC Regulations require the dismissal of complaints that fail to state
a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim, complainant
must allege a present harm or loss to a term, condition, or privilege
of her employment, inflicted because of race, color, religion, sex,
national origin, age, disability, or reprisal for protected activity.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
In claim (3), complainant has suffered no harm to a term, condition, or
privilege of her employment. Complainant remains in her GS-12 position,
and suffered no discipline or other negative consequence as a result of
training the new Branch Chief. Accordingly, complainant has failed to
state a claim in claim (3).
CONCLUSION
Accordingly, the agency's March 13, 2003 decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 10, 2004
__________________
Date