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