01A20001_r
06-27-2002
Celestine Bowers, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Celestine Bowers v. Department of the Army
01A20001
June 27, 2002
.
Celestine Bowers,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A20001
Agency No. BOEAFO0106B0370
DECISION
In her complaint, dated April 25, 2001, complainant claimed that she
was discriminated against on the bases of race (Black), sex (female),
and in retaliation for prior EEO activity when:
On March 14, 2001, complainant discovered that Person A was pre-selected
for a promotion to the position of Developmental Contract Specialist,
GS-1102-7/9/11;
Complainant was harassed by her supervisor, and specifically,
(a) Complainant's supervisor took over two months, August 2000 through
September 2000, to approve complainant's Individual Development Plan
(IDP);
Between September 2000 and October 2000, complainant's supervisor
issued complainant a counseling letter for not completing training
before the assigned �suspense date.� Complainant received no credit
for the course after completing it;
From August 2000 to September 2000, complainant was not given the
opportunity to work overtime in order to complete �back load work�
acquired when complainant moved into the contract specialist position;
In April 2000, complainant's supervisor made inappropriate/negative
comments about complainant prior to observing complainant's performance;
In September 2000, complainant contacted the Director via electronic
mail (e-mail) and asked to be removed from under her supervisor, but
complainant received no response. When complainant again asked to be
removed from under her supervisor, the Director said that she had no
place to put complainant and that complainant's supervisor does what
the Director asks him to do;
In June 2000, the Director placed complainant in the �dead-end job,�
of Contract Specialist-Purchase Card Program, but was told that she
would only have to remain there for a short period of time; and
On or about March 9, 2001, the Director denied complainant's transfer
to the �SADBUS� position.
In its decision dated June 25, 2001, the agency dismissed claim 1
and claim 3 for failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1). The agency dismissed claims 2(a) through 2(f) for
untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2).
Regarding claim 1, the Commission finds that the agency properly dismissed
claim 1 for failure to state a claim. On appeal, complainant specifically
states that she is concerned with the pre-selection of Person A for
promotion instead of Person B. Complainant has not shown that she was
individually aggrieved in claim 1. Therefore, we find that claim 1 was
properly dismissed pursuant to � 1614.107(a)(1).
The Commission also finds that the agency properly dismissed claims 2(a)
through 2(f) for untimely EEO Counselor contact. EEOC Regulation 29
C.F.R. � 1614.105(a)(1) requires complaints of discrimination to be
brought to the attention of the EEO Counselor within forty-five (45)
days of the date of the claimed discriminatory matter, or, in the case
of a personnel action, within forty-five (45) days of the effective date
of the action. The Commission's regulations, however, provide that the
time limit will be extended when the complainant shows that he or she
was not notified of the time limits and was not otherwise aware of them,
that he or she did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond his or
her control from contacting the counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission. See
29 C.F.R. � 1614.105(a)(2).
The record discloses that the claimed discriminatory events described
in claims 2(a) through 2(f), occurred, at the latest, in October 2000.
Complainant did not initiate contact with an EEO Counselor until March 15,
2001.<1> The Commission finds that complainant should have reasonably
suspected discrimination, at the latest, on October 31, 2000, the last
day in October, which was more than 45 days before her initial contact
with an EEO Counselor. Complainant has failed to submit sufficient
justification, pursuant to 29 C.F.R. � 1614.105(a)(2), for extending
the time limitation for EEO Counselor contact beyond forty-five (45)
calendar days. Therefore, claims 2(a) through 2(f) were properly
dismissed for untimely EEO Counselor contact.
The Commission finds that the agency improperly dismissed claim 3 for
failure to state a claim. In its July 25, 2001 decision, the agency
states that complainant did not identify a program under which she was
entitled to a non-competitive promotion; however, this analysis is not
relevant to a determination of whether complainant has stated a claim of
discrimination. In claim 3, complainant has identified an incident that
adversely affected a term, condition, or privilege of her employment,
the denial of a transfer; therefore, we find that the agency improperly
dismissed claim 3.
The agency's final decision dismissing claim 1 and claims 2(a) - 2(f)
is AFFIRMED. The agency's final decision dismissing claim 3 is REVERSED.
Claim 3 is REMANDED for further processing in accordance with the
Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
June 27, 2002
__________________
Date
1On appeal, complainant claims that her
initial contact with an EEO Counselor occurred on March 14, 2001.
The EEO Counselor's report reflects that the initial contact occurred
on March 15, 2001. Regardless of the date used, complainant's initial
EEO Counselor contact for claims 2(a) through 2(f) was still untimely.