01A11125
09-19-2001
Carol L. Colwell, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Carol L. Colwell v. Department of the Navy
01A11125
09-19-01
.
Carol L. Colwell,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A11125
Agency No. DON-00-00014-002
DECISION
Upon review, the Commission finds that the agency's decision dated October
13, 2000, dismissing complainant's complaint is proper pursuant to 29
C.F.R. � 1614.107(a). In her complaint, complainant alleged that she
was discriminated against on the basis of age, in violation of the Age
Discrimination in Employment Act (ADEA) of 1967, as amended, 29 U.S.C. �
633a. Her age discrimination claim encompassed the following incidents:
On February 16, 2000, the university business affairs director made
complimentary comments about a younger employee;
On September 12, 1999, the agency notified complainant that she was not
selected for either of two contract administration positions for which
she applied;
On July 6, 1998, complainant was allegedly denied career advancement
when an outside applicant younger than 40 years old was hired as a GS-12
contract administrator;
Between January and August of 1996, complainant was allegedly denied
the opportunity to compete for promotion to GS-7; and
Between January 1996 and February 2000, the agency continuously
discriminated against complainant on the basis of age in connection
with promotional opportunities and various other terms, conditions,
privileges, and benefits of her employment.
The agency dismissed the complainant on the grounds of failure to state
a claim and failure to contact an EEO counselor in a timely manner.
With respect to the first incident, the agency found that complainant
failed to state a claim. In order to state a claim, complainant must
allege that she suffered a present harm or loss with respect to a term,
condition, or privilege of employment. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994). A compliment from a
supervisor to another employee does not constitute a harm or loss with
respect to complainant. We therefore find that the agency properly
dismissed that portion of the complainant which pertains to incident (1).
With respect to incidents (2), (3), and (4), the record establishes
that complainant first contacted an EEO counselor on March 2, 2000.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires agencies to dismiss
a complaint which fails to comply with the time limitations set forth in
29 C.F.R. � 1614.105(a). An aggrieved person is required to initiate
contact with an EEO counselor within 45 days of the date of the matter
alleged to be discriminatory or, in the case of a personnel action,
within 45 days of the effective date of the action. See 29 C.F.R. �
1614.105(a)(1). In order for this contact to have been timely, the
incident complained of would have had to occur either on or after January
18, 2000. The matters described by complainant pertaining to incidents
(2), (3), and (4) all occurred before that time frame.
EEOC regulations further provide that the agency or the Commission shall
extend the time limits when the individual shows that he or she was not
notified of the time limits and was not otherwise aware of them, that
he or she did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due
diligence he or she was prevented by circumstances beyond his or her
control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.
See 29 C.F.R. � 1614.105(a)(2). Complainant has not presented any
justification as to why the time limit should be extended. We therefore
find that the agency properly dismissed that portion of the complaint
that encompasses incidents (2) through (4).
With respect to incident (5), although complainant claims that she had
been subjected to ongoing discrimination, she has not identified any
incident which occurred after January 18, 2000, other than the matter
described in incident (1). Without at least one timely incident,
a continuing violation claim cannot stand. See, Redmon v. Office
of Personnel Management, EEOC Request No. 05991100 (August 25, 2000).
We find that the agency properly dismissed that portion of the complaint
that encompasses incident (5).
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
____09-19-01______________
Date