Pam K. Wigle, Complainant,v.R. L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMay 29, 2003
01A20609_r (E.E.O.C. May. 29, 2003)

01A20609_r

05-29-2003

Pam K. Wigle, Complainant, v. R. L. Brownlee, Acting Secretary, Department of the Army, Agency.


Pam K. Wigle v. Department of the Army

01A20609

May 29, 2003

.

Pam K. Wigle,

Complainant,

v.

R. L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A20609

Agency No. AFBGFO0109B0380

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. In a complaint dated August 30, 2001, complainant alleged

that she was subjected to discrimination on the bases of sex (female)

and reprisal for prior EEO activity when, on May 9, 2001, she attended

a meeting with a contract official and the Holston Administrative

Contracting Officer (a non-Government employee) screamed at her.

The Commission finds that complainant was not aggrieved by the May 9,

2001 incident and that the incident was insufficiently severe to state

a claim of harassment.

The agency also defined the complaint as alleging:

In [complainant's] letter to [Person A], 8 June 2001, she indicates

she believes her position (Environmental Engineer, GS-0819-12) should

be audited and upgraded to a GS-0819-13 which she believes accurately

reflects her duties and responsibilities.

The agency dismissed this claim regarding the position audit for

failure to state a claim and as moot. The agency found that the audit

was completed and that the audit did not result in a recommendation

that complainant's position be upgraded. The Commission finds that the

position audit issue was not raised as a separate claim in the complaint.

A review of the record, including the EEO Counselor's report, indicates

that complainant sought to raise this issue in her complaint as only a

remedial matter and not as a separate claim of discrimination.

The Commission notes that throughout the record complainant refers to a

settlement agreement. Complainant is not alleging breach of a settlement

agreement in the instant appeal. Furthermore, we find that the agency

properly informed complainant of the procedures to raise breach claims.

Breach claims must be raised with the EEO Director, in writing, within

30 days of when complainant knew or should have known of the alleged

noncompliance. 29 C.F.R. � 1614.504(a).

Accordingly, the agency's final 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

May 29, 2003

__________________

Date