0120121486
06-21-2012
Carolyn J. Fox, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Carolyn J. Fox,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120121486
Agency No. ARCEJACK110CT04716
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 22, 2011, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Assistant District Counsel at the Agency's Office of Counsel facility in Jacksonville, Florida. On December 5, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity when:
a. The Agency disqualified Complainant's choice of a representative in a previously filed complaint;
b. The Agency's EEO officer refused to reschedule a fact-finding conference in Complainant's previously filed complaint, because of a pending decision regarding the disqualification of Complainant's representative; and
c. The Agency denied Complainant's request for 16 hours of official time to prepare for the fact-finding conference scheduled in Complainant's previously filed complaint and granted her only two hours of official time.
The Agency dismissed claim a as moot pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(5) and claims b and c for failure to state a claim in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(1).
ANALYSIS AND FINDINGS
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. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that an agency shall dismiss a complaint that alleges dissatisfaction with a previously filed complaint.
Upon review, the Commission finds that the instant matter is more appropriately dismissed in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(8) on the grounds that it alleges dissatisfaction with the processing of a previously filed complaint. Here, complainant's complaint consists of several allegations of misconduct by the Agency in reference to Agency Case No. ARCEJACK11May02060 filed by Complainant on June 21, 2011. See Berls v. Department of the Treasury EEOC Appeal No. 01A04910 (September 19, 2001). Upon review, the Commission finds that in accordance with 29 C.F.R. � 1614.107(a)(8), the complaint is properly dismissed.
CONCLUSION
Accordingly the Agency's decision is affirmed for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
June 21, 2012
__________________
Date
2
0120121486
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121486