0120103650
06-08-2012
Jodi L. Christy, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Jodi L. Christy,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120103650
Agency No. ARRIA10JUL02942
DECISION
Complainant filed an appeal with this Commission concerning her complaint of unlawful employment discrimination. For the reasons set forth herein, we AFFIRM the Agency's decision, dismissing the complaint.
BACKGROUND
The record reveals that, during the relevant time, Complainant was employed as a Welding Worker at the Agency's Weld Shop, Joint Manufacturing and Technology Center in Rock Island, Illinois. Complainant sought EEO counseling and subsequently filed a formal complaint. Complainant alleged that she was subjected to discrimination on the bases of sex (female) and in reprisal for prior EEO activity when:
1. On May 25, 2010, management denied Complainant's request to sit in the office for the Union President while she was out of the office.
2. On April 8, 2010, management assigned Complainant to weld a job for which she felt she was not properly trained.
3. On March 10, 2010, Complainant's request to speak with the Commander was not granted.
4. On January 8, 2010, Complainant was not allowed to work in the M119 Trail booth.
5. On October 30, 2009, Complainant injured herself at work and her supervisor indicated that her actions cost her co-workers $75.00 that month.
6. In June of 2009, Complainant requested and received a respirator for work.
7. On April 17, 2009, Complainant's supervisor told her he would seek corrective action if she continued going to the union.
On August 11, 2010, the Agency issued a decision dismissing claim 1 pursuant to 29 C.F.R. �1614.107(a)(1) for failure to state a claim. Additionally, the Agency dismissed claims 2 - 7 pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor Contact. Thereafter, Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
Claim 1
The regulation set forth at 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 21, 1994).
We concur with the Agency and find that Complainant is not aggrieved as a result of the incident alleged in claim 1. Nothing in the record indicates that Complainant suffered any harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Complainant failed to explain how this incident rendered her aggrieved.
Claims 2 - 7
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 alleged discriminatory events in claim 2 - 7 occurred between April 17, 2009 and April 8, 2010. We concur with the Agency and find that Complainant did not initiate contact with an EEO Counselor until June 25, 2010, which is beyond the 45-day limitation period. On appeal, Complainant has presented no persuasive arguments or evidence on appeal warranting an extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
The Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 8, 2012
__________________
Date
2
0120103650
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103650