01A01192
03-30-2001
Ida Wise, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Ida Wise v. Department of Veterans Affairs
01A01192
March 30, 2001
.
Ida Wise,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A01192
Agency No. 99-0452
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated October 26, 2000, 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. In her
complaint, complainant alleged that two co-workers were discriminated
against on the bases of race (African-American) and sex (male) when:
The co-workers were denied a promotion on or about October 23, 1998;
Training was not provided for the African-American employees currently
holding the GS-5 position to help them achieve the promotion potential
as it was for Caucasian employees;
Employees are treated differently because of sex . . . . men in the
division are not afforded the same opportunities for training and career
enhancement as Caucasian female employees;
Working conditions created an atmosphere lacking mutual respect for
all employees;
Another employee was reassigned into a position, and no other employees
were afforded the same opportunities. The reassigned employee, a
Caucasian male, was involved in �incidents that have been swept under
the carpet;�
A Caucasian employee was provided training on recurring dates when she
attended training for Fund Control Point and Management Control Point
(January 20, 1998) and training as an Administrative Officer while
detailed/reassigned to the position of Secretary. African-American
employees of the same grade were not afforded such training; and
The Caucasian employee was reassigned as Secretary to the Loan Guaranty
Officer, and management tried to illegally promote her to a GS-6 without
posting the position for recruitment.
The agency dismissed the complaint for failure to cooperate.
Specifically, the agency found that it notified complainant she could
not file complaints on behalf of others, unless representing them with
their consent. It requested that complainant provide the names of the
aggrieved individuals, and their consent to complainant's representation.
Complainant failed to respond, prompting the agency's dismissal pursuant
to 29 C.F.R. � 1614.107(a)(7).
Alternatively, the agency dismissed the complaint for failure to state
a claim. It noted that vague claims lacking necessary information should
be dismissed on this ground, and also found that complainant alleged no
personal harm -- only harm suffered by others.
On appeal, complainant, the union local president, argues that the instant
complaint should be consolidated with a class complaint she filed as
class agent �on behalf of the bargaining unit employees of Local 25
of AFGE.� She contends that the class complaint included three named
individuals discriminated against by �denial of critical elements; denial
of duties; sex discrimination; denial of specialized off-station training
in real estate, property management for computer �access' program; unfair
working conditions, and denial of non-competitive detail.� Meanwhile,
complainant asserts, two African-American GS-5 employees were denied
training provided to a Caucasian employee, which led complainant to file
the present complaint.
Complainant argues that the instant complaint, along with the class
complaint, should be reviewed by an EEOC Administrative Judge (AJ)
to determine class certification. She argues that the claims, once
properly consolidated, should involve the following:
On a continuing basis from January 1998 to date, the class members
have been denied special projects that would enable them to demonstrate
their promotion potential;
On a continuing basis from January 1998 to date, the class members
have been denied a copy of written critical elements by which their
performance could be evaluated; and
On a continuing basis from January 1998 to date, the class members
have been denied off-station specialized training courses that have
been afforded to similarly situated individuals not in their protected
classes, including but not limited to management analysis training,
real estate and property management procedures classes, and �Access�
training; these are courses that would enable the class members to
compete more effectively for future promotions.
In response, the agency argues that the present complaint (Agency
No. 99-0452), and the class complaint (Agency No. 98-2111) do not
involve the same issues, and should not be consolidated. According to
the agency, the class complaint, currently pending before an AJ (EEOC
Hearing No. 100-A0-7098X), involves GS-9 Realty Specialists subjected
to a racially hostile environment and denied specialized training.
The agency argues that the instant complaint concerns nonselections
for GS-7 Administrative Assistant positions filed on behalf of unnamed
complainants.
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,
complainants must allege personal harm to a term, condition, or privilege
of employment on the basis of race, color, sex, national origin,
religion, age, disability and/or reprisal for prior EEO activity.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994); see also 29 C.F.R. �� 1614.103, .106(a) (setting forth
possible bases of federal sector discrimination complaints).
In the present complaint, complainant has alleged no personal harm.
The agency's failure to train or promote other employees does not
affect a term, condition, or privilege of complainant's employment.<1>
Accordingly, the agency's dismissal 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 30, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1To the extent that complainant wishes to incorporate these claims
with the class complaint, she must raise this issue with the AJ; the
Commission will not address this matter in the instant appeal. During
class complaint certification, the AJ has discretion to redefine a class,
subdivide it or recommend dismissal if it is discovered that there is no
longer a basis to proceed as a class complaint. 29 C.F.R. � 1614.204(d);
Dumbar v. Social Security Administration, EEOC Appeal No. 01975435
(July 8, 1998), request to reconsider denied, EEOC Request No. 05981075
(January 22, 1999).