01A05059
03-29-2001
Donna A. Brannan, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Donna A. Brannan v. Department of the Army
01A05059
March 29, 2001
.
Donna A. Brannan,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A05059
Agency No. BQGKFO0004A0606
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. �� 1614.107(a)(1) and .107(a)(2),
for failure to state a claim and for untimely EEO contact.
Complainant alleged that she was discriminated against based on sex
when she was subjected to a hostile work environment because of (1)
her participation (witness) in a sexual harassment claim against the
former Chief of Construction Division in 1999; (2) she felt that this
participation damaged her career; (3) she alleged that the District
Engineer failed to protect her career which he had promised at the time
she was required to give her statement in the above sexual harassment
incident; and (4) she believed that the March 24, 2000, selection of the
former associate of the Chief of Construction Division demonstrated the
failure to fulfill the commitment to her by the District Engineer.
The agency dismissed claim 1 as untimely on the grounds that complainant
did not contact a counselor on that matter until April 17, 2000. The
agency dismissed the other claims for failure to state a claim on the
grounds that complainant did not allege that she suffered a job related
injury due to the action or inaction of the agency.
The record discloses that the alleged discriminatory event in claim 1
occurred in 1999, but complainant did not initiate contact with an EEO
Counselor until April 17, 2000, which is beyond the forty-five (45) day
limitation period. On appeal, no persuasive arguments or evidence have
been presented to warrant an extension of the time limit for initiating
EEO contact.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part,
that an agency shall dismiss a complaint 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,
.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 22, 1994).
The record indicates that complainant did not suffer any job related
injury or loss as a result of the incidents in claims 2, 3, and 4.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 29, 2001
__________________
Date