Linda A. Colquitt, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJun 26, 2003
01A24979_r (E.E.O.C. Jun. 26, 2003)

01A24979_r

06-26-2003

Linda A. Colquitt, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.


Linda A. Colquitt v. Department of the Army

01A24979

June 26, 2003

.

Linda A. Colquitt,

Complainant,

v.

Thomas E. White,

Secretary,

Department of the Army,

Agency.

Appeal No. 01A24979

Agency No. 0201C0060

DECISION

In an EEO complaint dated June 28, 2001, complainant, an Auditor, GS-12,

claimed that she was discriminated against on the bases of her race

(African-American), sex (female), and age (46) when she was denied a

promotion to the GS-13 level and she was subjected to a hostile work

environment that consisted of profanities.

By final action dated August 9, 2002, the agency dismissed the complaint

pursuant to 29 C.F.R. �1614.107(a)(1) on the grounds of failure to state

a claim. The agency determined with regard to complainant not being

promoted that three GS-13 vacancies were announced from October 2000 to

June 1, 2001. According to the agency, complainant was not referred

for these vacancy announcements because she was not entered into the

ACCESS system as of the closeout date for the positions. With regard

to three other Auditor, GS-13 positions that complainant claimed she

was not selected for, the agency determined that complainant was not

considered since there is no record of the relevant vacancy announcements.

As for complainant's claim of a hostile work environment, the agency

determined that complainant failed to establish how she was injured by

the profanities.

On appeal, complainant states that she saw an offensive and demeaning hard

copy of an e-mail on a common table. Complainant argues that the e-mail

was biased against women and contributed to a harassing, intimidating,

and hostile work environment. Complainant states that a male employee

who sat directly across from her constantly used profanity. With regard

to the promotions at issue, complainant states that on November 6, 2000,

the ACCESS system indicated that her registration was complete for the

career program and comptroller program, and that she was eligible for

referral. Complainant contends that she applied for GS-13 positions

via the ACCESS system. Complainant states that she initiated contact

with the EEO Office after three promotions were announced.

In response, the agency asserts that complainant has not offered

new concrete evidence that any of the alleged comments were either

severe or pervasive or that the comments were directed towards her.

The agency further states that complainant has not alleged that she

reported her concerns to any management official. With regard to the

nonselection issue, the agency asserts that the vacancy announcements

identified by complainant in her appeal are completely different from

those she identified in her formal complaint. The agency maintains

that the vacancies identified in complainant's appeal are not within

its audit division.

Upon review of the record, we find with regard to complainant's claim

of a hostile work environment that complainant has failed to state

a claim. The alleged incidents at issue are not of sufficient severity

or pervasiveness to constitute a hostile work environment. Moreover,

complainant has not shown that the alleged incidents were directed at her.

As for complainant's claim that she has been denied promotion to the

GS-13 level, we observe that it is not clear exactly which positions

and vacancy announcements are at issue. In her informal complaint,

complainant referenced a position that she sought with the agency in

November 2000. However, she also referenced two positions with the

Department of the Navy's Audit Service. These two positions are not

within the agency's jurisdiction since they are with the Department of

the Navy. In its decision, the agency determined that complainant was not

considered for the three Auditor, GS-13 positions that complainant claimed

she was not selected for because there is no record of such positions.

The agency further determined that complainant was not entered into the

ACCESS system at the time of the three Auditor, GS-13 positions that

were announced at the agency's Atlanta Field Office from October 2000 to

June 2001. Complainant, however, contests this position on appeal as she

states that she was in the ACCESS system and eligible for referral as of

November 6, 2000. We find that the record is unclear and insufficient

at this juncture to allow for a finding as to whether complainant has

stated a claim concerning her not being promoted to a GS-13 position.

The agency's dismissal of the claim of a hostile work environment on

the grounds of failure to state a claim was proper and is AFFIRMED.

The agency's dismissal of the claim concerning complainant not being

promoted to a GS-13 position is VACATED. This claim is REMANDED for

further processing pursuant to the Order below.

ORDER

The agency is Ordered to attempt a clarification of the specific

incidents of nonselection that are at issue in the instant complaint.

Within fifteen (15) calendar days of the agency's receipt of this

decision, the agency shall submit a written request to complainant

to state the specific position nonselections that are at issue in the

instant complaint dated June 28, 2001. The agency shall also request

that complainant provide evidence to support her contention that she was

in the ACCESS system and eligible for referral as of November 6, 2000.

Complainant shall submit a written response to the agency within fifteen

(15) calendar days of her receipt of the agency's written request.

Within sixty (60) calendar days of the date of this decision, the agency

shall either issue a notice of processing or a new decision.

A copy of the agency's new decision must be sent to the Compliance

Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action after

one hundred and eighty (180) calendar days of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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

June 26, 2003

__________________

Date