01984019
06-18-1999
Bari L. Darr, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Contract Audit Agency),) Agency.
Bari L. Darr v. Department of Defense
01984019
June 18, 1999
Bari L. Darr, )
Appellant, )
)
v. ) Appeal No. 01984019
) Agency No. E 98-05
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Contract Audit Agency),)
Agency. )
)
DECISION
The Commission finds that the agency's April 2, 1998, and June 24, 1998
decisions dismissing a portion of appellant's complaint on the grounds of
failure to state a claim and because they raise matters already decided
by the agency or the Commission, are proper pursuant to the provisions
of 29 C.F.R.�1614.107(a) and (b).
The record shows that on February 12, 1990, appellant filed a formal
complaint of discrimination alleging, inter alia, that she had been
discriminated against on the bases of age (42), physical disability (size)
and sex (sexual harassment) when she was not provided the opportunity
to be promoted to a GS-12 position. This complaint was identified as E
90-15. On August 6, 1990, appellant and the agency reached a settlement
agreement. By letter dated July 9, 1994, appellant's attorney alleged
that the agency had failed to comply with the terms of the settlement
agreement. Appellant requested that her complaint be reinstated because
she had not been promoted to a GS-12 position. By letter dated August
15, 1994, the agency advised appellant that her complaint would not be
reinstated because no breach of the settlement agreement had been found.
Appellant was informed by the agency that her new allegations should be
brought to the attention of an EEO counselor. Appellant filed an appeal
concerning the agency's determination. By decision dated November
9, 1995, the Commission affirmed the agency's determination that the
settlement agreement had not been breached. Darr v. Defense Contract
Audit Agency, EEOC Appeal No. 01945589 (November 9, 1995).
The agency interpreted appellant's letter dated July 9, 1994, as a
complaint of discrimination and an EEO counselor was assigned on July
20, 1994. This complaint was identified as E 94-18. In her July 9, 1994
complaint, appellant alleged, inter alia, that she had been discriminated
against on the bases of age (47), sex (female), physical disability
(size) and reprisal for prior EEO activity and subject to a hostile
work environment when she was not promoted to a GS-12 auditor position
and when she was not given the opportunities to obtain a promotion to
the GS-12 level. By letter dated July 14, 1995, the agency accepted
appellant's claim of non-promotion to the GS-12 level from August 6,
1990, to the present (date of acceptance of this issue: July 14, 1995).
On January 16, 1998, appellant sought EEO counseling alleging that she
had been discriminated against on the basis of reprisal for prior EEO
activity when: (1) from 1988, to the present she was not promoted to
a GS-12 auditor position; (2) she was not provided with opportunities
to meet the requirements for promotion to GS-12 auditor; and (3)
the fact that she is the only auditor who has not been promoted to a
GS-12 auditor position created a hostile work environment as follows:
(a) her non-promotion set her apart from her fellow workers; (b) she
feels isolated from her fellow workers and is subject to an emotionally
damaging hostile environment; (c) her fellow workers distance themselves
from her; and, (d) the manner in which the agency investigated her 1996
complaint created a hostile work environment because the agency led her
coworkers to believe that the complaint was against them as individuals
instead of against the agency. Appellant subsequently filed her formal
complaint of discrimination.
By decisions issued on April 2, 1998, and June 24, 1998, the agency
accepted allegation (1) (non-promotion to GS-12 auditor position) and
allegation (2) (not provided opportunities in order to be promoted to
a GS-12 position) for investigation. However, the agency limited the
scope of the investigation to events from July 15, 1995, to the present
after finding that any events concerning both allegations which could
have taken place before July 15, 1995, were the subject of appellant's
prior EEO complaints, E 90-15 and E 94-18. Allegations (3a) - (3d) were
dismissed on the basis of failure to state a claim. Allegation (3d) was
also dismissed on the grounds of untimely EEO counselor contact after
the agency found that although the hearing concerning appellant's 1996
complaint was finished on July 31, 1997, she did not seek EEO counseling
until January 16, 1998, well beyond the 45-day time limit provided by
EEOC Regulations.
On appeal, appellant contends that she is claiming a continuing violation
and that the instant complaint "cannot be properly evaluated without
consideration of the agency's actions both before and after she filed
her first complaint ... in 1989".
A review of the record persuades the Commission that the agency's
final decisions dated April 2, 1998, and June 24, 1998, were proper.
The record shows that in the complaints identified as E 90-15 and E 94-18,
the agency addressed the issues of appellant's non-promotion to a GS-12
auditor position and the agency's denial of opportunities to appellant to
be promoted to the GS-12 level from August 6, 1990, through July 14, 1995.
Therefore, the limited scope of the agency's investigation of allegations
(1) and (2) of the instant complaint to instances occurring from July 15,
1995, to the present was proper and is hereby AFFIRMED.<1>
We also agree with the dismissal of allegations (3a) - (3d) on the basis
of failure to state a claim. An agency shall accept a complaint from
any aggrieved employee or applicant 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;
�1614.106(a). The Commission has held that while the regulations do
not define the term "aggrieved employee," the United States Supreme
Court has interpreted it to mean an employee 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 (Apr. 21, 1994). "To state a claim under
our regulations, an employee must allege and show an injury in fact."
Id. (citing Hackett v. McGuire Bros., 445 F.2d 447 (3d Cir. 1971)).
"Specifically, an employee must allege and show a `direct, personal
deprivation at the hands of the employer,' that is, a present and
unresolved harm or loss affecting a term, condition or privilege of
his/her employment." Id. (citing Hammonds v. United States Postal Serv.,
EEOC Request No. 05900863 (Oct. 31, 1990); Taylor v. United States Postal
Serv., EEOC Request No. 05900367 (June 2, 1990)).
A review of allegations (3a) - (3d) persuades the Commission that
appellant has failed to show that she has been aggrieved by the alleged
actions.<2> Her allegations, even if treated as true, are not sufficient
to state a claim of hostile work environment. See Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997). Accordingly,
the dismissal of allegation (3a) - (3d) was proper and is hereby AFFIRMED.
The limited scope of the agency's investigation of allegations (1) and
(2) is appropriate and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
June 18, 1999 Carlton M. Hadden, Acting Director
DATE Office of Federal Operations
1 We note that the agency did not limit the scope of its investigation
of allegations (1) and (2) on the grounds of untimeliness. Therefore,
appellant's argument of a continuing violation is not appropriate nor
is it persuasive to the Commission.
2 Based on our finding we need not address the agency's alternate basis
for dismissal (untimely EEO counselor contact).