01A45748_r
02-04-2005
Regina Grady, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Regina Grady v. Department of Justice
01A45748
February 4, 2005
.
Regina Grady,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A45748
Agency No. F-04-5839
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated July 18, 2004, dismissing her complaint of unlawful
employment discrimination. In her complaint, dated February 4, 2004,
complainant alleged that she had been the subjected to �retaliation
since the events reported to my [EEO] Counselor.�
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. In its decision, the agency found that
complainant discussed the following issues with the EEO Counselor:
Complainant was hospitalized for a medical condition in May 2003.
In June 2003, complainant was granted a 10 am to 6:30 pm work shift to
accommodate her medical condition.
On September 6, 2003, complainant was given a direct order to go to
the closed files facility in Moonachie, NJ. Complainant refused due
to her medical condition and the matter was referred to the Office of
Professional Responsibility.
On September 6, 2003, complainant was directed to provide by 4 pm on
September 9, 2003, in writing, her reasons for her refusal to go to
New Jersey.
On September 9, 2003, complainant's work schedule was changed to 8:15
am to 4:45 pm and complainant was directed to use annual or sick leave
if she arrived at work late and for each instance, to state in writing
why she was late.
On October 6, 2003, complainant requested a reasonable accommodation
for her medical condition so that she could regain her previous work
shift of 10 am to 6:30 pm.
On October 18, 2003, complainant was notified that her reasonable
accommodation request was denied by the New York Office and that her
request (FD-856) was being forwarded to OEEOA, FBIHQ.
On October 26, 2003, a supervisor (S2) told complainant's supervisor
(S1) that complaints had been heard regarding her attitude and S2 has
continued to harass complainant, directly or indirectly, since September
6, 2003.<1>
The agency stated that complainant was asked to clarify her complaint
by letter dated April 9, 2004, and to include any additional incidents
that had occurred since the conclusion of counseling. In the letter,
the agency also asked complainant to identify her disability, if she
was claiming discrimination on the basis of disability. Complainant
responded by sending a letter received by the agency on May 3, 2004, in
which she identified those claims enumerated as (3), (5), (7), and (8).
In addition, the agency noted that complainant identified the following
incidents of alleged discrimination:
In November 2003, complainant's supervisor approved her travel to the
Miami Field Office to assist in its inspection, but executive management
rescinded the approval;
Recently, complainant's supervisor approved travel for complainant to
the Pittsburgh Field Office to assist in its inspection for May 2004,
but complainant's new Acting Special Agent in Charge (ASAC) (S3) denied
the request.
Sometime after April 13, 2004, complainant learned that S3 intended to
deny complainant's request for Leave without Pay (LWOP) for being out
on April 13, 2004.
The agency found that by telephonic communication with the agency's Equal
Employment Specialist (EES), when asked directly to identify the basis
or bases of her complaint, complainant denied that she was alleging a
disability claim, and that her reprisal claim was based on her refusal
to travel to the closed files facility on September 6, 2003, not for
any prior EEO activity.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1),
as complainant failed to allege discrimination based on any of the
protected bases within the purview of the statutes enforced by the
Commission.
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 find that despite the agency's good faith efforts to clarify
the allegations of complainant's complaint, complainant has failed
to allege discrimination on one of the prohibited bases apart from
possibly reprisal. Furthermore, complainant has failed to identify
any prior protected activity on which to base her claims of reprisal.
See 29 C.F.R. � 1614.101(b),
We therefore AFFIRM the agency's dismissal of the complaint.
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
February 4, 2005
__________________
Date
1We have edited complainant's claims, as framed
by the agency, to include dates that appear in the EEO Counselor's report,
for clarity.