01a50433
01-31-2005
Stephanie Timmons, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Stephanie Timmons v. Department of the Army
01A50433
01-31-05
.
Stephanie Timmons,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A50433
Agency No. ARCARSON04JUN0016
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 17, 2004, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of race (African-American), sex (female), and reprisal for
prior EEO activity when:
She was denied training on several occasions that could have afforded
her advancement while her coworkers were given these same training
opportunities;
On April 14, 2004, a preliminary step was taken to have her suspended
for three days for a HIPPA violation, although the suspension did not
take effect, the action was part of a pattern of harassment;
She received a level �2" on her evaluation that was later changed to a
level �4."
The agency dismissed claim (a) for untimely EEO counselor contact and
claims (b) and (c) because complainant raised the same matters in a
negotiated grievance procedure that permits allegations of discrimination
to be raised. On appeal, complainant contends that the agency's dismissal
of her complaint was improper. With regard to claim (a), complainant
asserts that she was denied training on a regular reoccurring bases. With
regard to claim (b), complainant denies that she raised this issue in
a negotiated grievance procedure. With regard to claim (c), complainant
asserts that she filed a grievance regarding the performance standards not
her performance rating and that this grievance was subsequently withdrawn.
In reviewing the evidence of record including complainant's contentions on
appeal, we find that complainant's complaint was properly dismissed. EEOC
Regulation set forth at 29 C.F.R. � 1614.105(a)(1) requires that
complaints of discrimination be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five (45) days of the effective date of
the action. Here, with respect to claims (a), (b) and (c), complainant
failed to identify any alleged discriminatory incidents that occurred
within forty-five days of her initial EEO Counselor contact on June
23, 2004. Complainant either does not provide a date for the alleged
discriminatory conduct (claims (a) and (c)) or provides a date that is
outside of the 45-day time period for contacting an EEO counselor (claim
(b)).<1> Accordingly, complainant's complaint is properly dismissed for
untimely EEO counselor contact. Since we are affirming the dismissal
of complainant's complaint on the grounds of untimely EEO counselor
contact, we will not address the alternative grounds upon which the
claims are dismissible.
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
_____01-31-05_____________
Date
1The record evidence shows that on September
9, 2004, the agency requested that complainant provide additional
information regarding her allegations including the dates that she was
purportedly denied training and further advised complainant that if she
did not furnish the information requested, the complaint was subject to
dismissal based on untimeliness. The agency contends, and complainant
does not dispute, that complainant failed to respond to the agency's
request for additional information/clarification.