01A12848_r
03-14-2002
Jana M. Nicastro, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Jana M. Nicastro v. Department of Transportation
01A12848
March 14, 2002
.
Jana M. Nicastro,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A12848
Agency No. DOT-6-01-6006
DECISION
Complainant timely appeals the agency's February 21, 2001 decision,
amended on March 30, 2001, dismissing complainant's complaint.
Complainant alleges she was discriminated against:
On the bases of race and sex when she was hired in 1997 at a pay level far
below her qualifications in comparison to other FAA Security employees
resulting in their being automatically upgraded to full performance
levels of FG-13;
On the bases of race and sex when: (a) during Mr. [X's] detail of May 1999
to the Acting position as DG/CS Coordinator, DG Agents were not given
any direction or leadership; (b) Mr. [X] supplied a fraudulent date to
Washington, DC, HG FAA pertaining to work completed by field agent; (c)
in July 1999, Mr. [X] failed to clarify what needed to be done with the
DG/CS program in Alaska and management failed to initiate and maintain
any standard according to national guidelines; (d) she discovered a
case opened by one of her co-workers that was still open in July 1998,
1.5 years later, when it was closed as �No Action;� and (e) beginning in
February 2000, Mr. [X] began ignoring her and acted hostile towards her;
On the basis of sex when she was subjected to sexual harassment
when Mr. [X] made an inappropriate comment to her regarding internet
pornography web sites; and
On the bases of race and sex when other Security Agents in the Anchorage
Civil Aviation Security Field Office, who had higher grade levels than
her were assigned less work than her, and she was denied pre-authorized
overtime pay for travel and a �day of rest.�
Complainant does not challenge the agency's framing of the claims in
her complaint. The agency dismissed all of the claims in complainant's
complaint for untimely EEO Counselor contact pursuant to 29 C.F.R. �
1614.107(a)(2). The agency further dismissed all of the claims pursuant
to 29 C.F.R. � 1614.107(a)(7), for failure to cooperate. The agency
additionally dismissed claim 2 for failure to state a claim pursuant to
29 C.F.R. � 1614.107(a)(1).
Regarding claim 1, complainant argues that she did not reasonably suspect
discrimination until late September/early October 1999, when she learned
that her co-workers were eligible for upgrades. Complainant did not
initiate EEO Counselor contact until May 18, 2000, which is beyond the
45-day limitation period. Complainant argues that she first contacted the
Civil Rights Office, Alaskan Region in October 1999. However, on appeal,
complainant states that she first contacted the Civil Rights Office,
Alaskan Region regarding a grievance. We find that complainant failed to
show that she contacted the Civil Rights Office with the intention to file
an EEO complaint. Further, we find that complainant has not presented
adequate justification to warrant extension of the applicable time limit
for initiating EEO Counselor contact. Therefore, we find the agency's
dismissal for untimely EEO Counselor contact to be proper. Since claim
1 is properly dismissed for untimely EEO Counselor contact, we will not
address whether the claim was properly dismissed on alternative grounds.
Regarding claim 2, complainant has not shown a harm to a term condition or
privilege of employment, and therefore, claim 2 fails to state a claim.
Since claim 2 is properly dismissed for failure to state a claim,
we will not determine whether the claim was properly dismissed on
alternative grounds. Regarding claim 3, we find that complainant has not
shown harm to a term, condition or privilege of employment. Therefore,
her claim is properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim.
Regarding claim 4, the agency dismissed the claim for untimely EEO
Counselor contact reasoning that since she did not respond to the request
for more information, the claim was untimely. The agency contends
that the agency sent a letter to complainant, dated November 16, 2000,
requesting more information. The record only contains a letter from
the Regional Director of the Civil Rights office dated November 16,
2000, requesting more information. On November 21, 2000, the agency
and complainant jointly responded to the letter providing additional
information. However, the response does not include the date of the
discriminatory action alleged in claim 4. Since complainant has failed
to supply the date of the discriminatory event during EEO counseling,
in her formal complaint, in her response for more information, or
on appeal, we find the agency's dismissal for untimely EEO Counselor
contact proper. Complainant has not provided any explanation as to
why she has not provided a date for the incidents at issue in claim 4.
Complainant has not shown that any of the incidents in claim 4 occurred
45 days or less prior to her initial EEO Counselor contact. Since claim
4 is properly dismissed for untimely EEO Counselor contact, we will not
determine whether dismissal is also proper under alternative grounds.
The agency's decision dismissing complainant's complaint is AFFIRMED.
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
March 14, 2002
__________________
Date