01997095
06-13-2001
Cynthia Woodland, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Cynthia Woodland v. Department of Energy
01997095
06-13-01
.
Cynthia Woodland,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01997095
Agency No. 99 (074) HQ/CI
DECISION
In accordance with 29 C.F.R. � 1614.405, complainant's appeal from the
agency's final decision in the above-entitled matter has been accepted
by the Commission. The issue on appeal is whether the agency properly
dismissed several allegations in complainant's formal EEO complaint on
procedural grounds.
Complainant filed a formal EEO complaint alleging in relevant part
that she was discriminated against on the bases of race (Black), color
(Black), and age (52) when she was denied educational opportunities.<1>
Complainant also alleged discrimination on the same bases when: (1)her
supervisor had a rude and demeaning attitude; (2) her parking passes
were denied; (3) she is an African-American female;(4) she is a member
of a protected group; (5) she exercised her constitutional rights in
accordance with the Civil Rights Act, as amended; and, (6) she is over
the age of forty and is a taxpayer.<2>
The agency dismissed Issue A for failure to state a claim. The agency
dismissed Issues 1-6 for failure to state a claim and also on the grounds
that the claims were not brought to the attention of an EEO Counselor
and are not like or related to a matter that had been brought to the
attention of an EEO Counselor.
EEOC Regulation 29 C.F.R. � 1614.107(a) (1) provides in relevant part
that the agency may dismiss an allegation that fails to state a claim. An
agency shall accept a complaint from any aggrieved employee who believes
that she has been discriminated against by the agency because of race,
color, religion, sex, national origin, age or disabling condition. 29
C.F.R. � 1614.103; � 1614.106(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 22, 1994).
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) states, in pertinent part,
that an agency shall dismiss a complaint or portion thereof which raises
a matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling.
Issue A
We find that the agency properly dismissed Issue A under � 1614.107(a)(2).
A review of the EEO Counselor's report indicates that complainant failed
to bring any issues even remotely related to educational opportunities
to the attention of an EEO Counselor. Having affirmed the agency on
these grounds there is no need to consider whether the allegation states
a valid claim of discrimination.
Issues 1-6
Regarding Issue 1, we find that the agency properly dismissed this
claim under � 1614.107(a)(2). Even assuming that complainant stated
a valid claim of discrimination, there is no evidence in the record
that complainant raised a claim of this nature with an EEO Counselor
prior to filing her formal EEO complaint. In addition, we find that the
agency properly dismissed Issue 2. There is no evidence that she raised
the issue of parking passes with an EEO Counselor prior to filing her
formal EEO complaint. There is therefore no need to reach the issue of
whether complainant stated a valid claim with regard to Issue 2.
Finally, we find that the agency properly dismissed Issues 3-6 for
failure to state a claim. These allegations relate more to the bases of
complainant's claims and not to the substance of her allegations.
Accordingly, for the foregoing reasons, it is the decision of the
Commission to AFFIRM the agency's final decision dismissing a portion
of complainant's complaint on procedural grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
__06-13-01________________
Date
1 For purposes of this decision this claim will be referred to as
Issue A.
2 In the complaint herein, complainant also alleged three other claims
which the agency accepted. A final decision was issued regarding
these claims which found no discrimination. Complainant has appealed
this final decision to the Commission and the Commission affirmed the
agency's finding of no discrimination. See EEOC Appeal No. 01A02878
(July 12, 2000). Thereafter, complainant filed with the Commission a
Request for Reconsideration.