01A13875_r
09-18-2002
Vicki D. Davis, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Vicki D. Davis v. Department of the Army
01A13875
September 18, 2002
.
Vicki D. Davis,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A13875
Agency No. AVEUFO0103B0110
DECISION
Upon review, the Commission finds that the agency's decision dismissing
the complaint was proper. In an EEO complaint dated April 27, 2001,
complainant, a Procurement Technician, GS-1106-6, claimed that she
was subjected to discriminatory harassment on the basis of her race
(African-American) when:
1. She was assigned new duties in a different section on September
10, 2000.
2. Her supervisor forced two of her coworkers to write statements that she
inquired of them as to whether two other coworkers were having an affair.
This resulted in complainant receiving a verbal counseling on December
11, 2000.
3. On January 30, 2001, her supervisor had an e-mail sent out regarding
a missing picture that was in complainant's possession.
4. She received a verbal counseling from her supervisor on March 5,
2001, after she did not acknowledge a greeting from a coworker.
5. Her supervisor came into the Services Section on March 14, 2001,
while she was visiting with coworkers and listened to the conversation.
6. Her supervisor ordered her to leave a staff meeting on April 20, 2001.
With regard to claim 1, we find that the agency properly dismissed
this claim pursuant to 29 C.F.R. �1614.107(a)(2), on the grounds that
complainant failed to initiate contact with an EEO Counselor in a timely
manner. Complainant was assigned new duties effective September 10, 2000,
upon her reassignment to the Construction Branch of the Engineering &
Contract Management Division. Complainant did not seek EEO counseling
with regard to this matter until March 12, 2001, after the expiration of
the 45-day limitation period for contacting an EEO Counselor. Complainant
has not persuasively shown that she contacted an EEO Counselor with the
intent to pursue EEO counseling within 45 days of when she was assigned
her new duties.
The Commission finds that the alleged incidents set forth in claims 2 -
5 are not sufficiently severe or pervasive to constitute harassment.
We further find that complainant has not established that these alleged
incidents resulted in an injury or harm to a term, condition, or privilege
of her employment. Accordingly, the agency's decision dismissing claims
2 - 5 of the complaint on the grounds of failure to state a claim was
proper pursuant to 29 C.F.R. � 1614.107(a)(1).
Regarding claim 6, we find that the agency properly dismissed this claim
pursuant to 29 C.F.R. �1614.107(a)(4), on the grounds that complainant
elected to raise the matter in a negotiated grievance procedure
that permits allegations of discrimination. The record reveals that
complainant filed a grievance on April 25, 2001, which dealt in part with
her supervisor instructing her to leave the staff meeting. Complainant
withdrew the grievance on May 11, 2001. We find that complainant, by
filing the grievance two days before the complaint, made an election to
proceed through the negotiated grievance process and that once she made
such an election she could no longer file a complaint on the same matter.
The agency's decision dismissing the 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
September 18, 2002
__________________
Date