01a33393_r
04-30-2004
Faustina Green, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Faustina Green v. Department of the Navy
01A33393
April 30, 2004
.
Faustina Green,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A33393
Agency No. DON-03-0023A-001
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim and for stating the same matter that was addressed in
a previously filed EEO complaint.
In a formal complaint dated April 11, 2003, complainant claimed that
she was subjected to discrimination on the bases of race, sex, and in
reprisal for prior protected activity.
In a final decision dated April 25, 2003, the agency determined that
the instant complaint was comprised of two claims, identified in the
following fashion:
1. The agency deliberately lied about the existence of an anonymous
email and falsified information. This action triggered the issuance of
a Letter of Caution and an Unsatisfactory Performance Appraisal.
2. During a conversation with an agency EEO Counselor, complainant became
aware that an agency Executive Director made improper comments regarding
complainant's filing of a prior EEO complaint. The agency indicated
that complainant did not disclose what the Executive Director stated.
The agency dismissed claim (1) on the grounds that it addresses the same
matter raised in a prior EEO complaint. The agency dismissed claim (2)
on the grounds of untimely EEO Counselor contact, and on the alternative
grounds of failure to state a claim.<1>
Regarding claim (1), the record reflects that on April 30, 2002,
complainant filed a formal complaint (Complaint No. DON-02-0023A-001) .
Therein, complainant claimed that on October 2, 2001, she received
an unacceptable rating for the performance period of November 5,
2000-September 30, 2001, and on June 11, 2001, she was issued a Letter
of Caution. The agency dismissed these claims in a final decision dated
June 26, 2002.<2> The Commission determines that the matters raised
in claim (1) were raised in the prior EEO complaint referenced above,
and the agency's dismissal of claim (1) is AFFIRMED.
Regarding claim (2), the Commission determines that complainant had not
alleged a personal loss or harm regarding a term, condition, or privilege
of her employment. See Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). The agency's dismissal of claim
(2) for failure to state a claim is AFFIRMED.
Because we affirm the dismissal of claim (2) for the reason stated herein,
we will not address alternative dismissal grounds.
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
April 30, 2004
__________________
Date
1The agency also noted that in her formal
complaint, complainant identified an additional matter as �claim (3).�
Therein, complainant claimed that the agency's actions cause her severe
emotional harm. In its final decision, the agency noted that this matter
is merely a restatement of a request for corrective action or damages,
and dismissed it for failure to state a claim. On appeal, complainant
states that �claim (3)� was not intended to be construed as a separate
claim, but was �only meant to convey damages.� Complainant indicated
that she �withdraws this allegation� and the Commission will not further
address this matter.
2The Commission affirmed the agency's dismissal of the claims regarding
the unacceptable rating and the Letter of Caution. Green v. Department
of the Navy , EEOC Appeal No. 01A23937 (June 18, 2003).