0120093564
12-30-2009
Delia J. Jimenez, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Delia J. Jimenez,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120093564
Agency No. 8Y1M09010
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated July 13, 2009, 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. Upon review, the Commission finds that complainant's complaint
was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) and (2)
for failure to state a claim and untimely EEO Counselor contact.
In a complaint dated July 1, 2009, complainant alleged that she was
subjected to discrimination on the bases of national origin (Hispanic)
and reprisal for prior protected EEO activity under Title VII when: 1)
In early October 2008, her supervisor selected a White female, to work
a detail as the Assistant Director at the Kirtland Youth Center after
being asked who she wanted to work with which implied that complainant's
supervisor did not want to work with complainant; 2) Around the second
week in February 2009, a manager told complainant to submit her resume for
the vacated Assistant Director position at the Maxwell Child Development
Center (CDC). However, a week later this manager stated that she was not
going to detail the position and instead assigned the responsibilities
of the position to three White females; and 3) Around March 19, 2009,
she purportedly learned that her manager was limiting complainant's
role as a supervisor, hindering her from being considered for a detail
at the Youth Center and limiting knowledge that would make complainant
a better candidate for promotion. Complainant's manager purportedly did
this by not allowing complainant the opportunity to perform duties of
the Assistant Director or Director.
In its final decision, the agency dismissed claims 1 and 2 for untimely
EEO Counselor contact and claim 3 for failure to state a claim.
Complainant's initial contact with the EEO office was April 10, 2009.
In complainant's appeal statement, she argues that upper management
continues to unlawfully stifle her career opportunities at the agency.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should 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.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Concerning claims 1 and 2, the record reflects that the alleged
discriminatory actions occurred in early October 2008 and around
the third week in February 2009. Complainant's contact with the EEO
office was 10 April 2009, approximately 161 days and 49 days after the
alleged discriminatory events, which are beyond the forty-five (45)
day limitation period. The agency's dismissal of claims 1 and 2 for
untimely EEO Counselor contact was proper.
Concerning claim 3, the Commission finds that complainant fails to state
a claim under the EEOC regulations because complainant failed to show that
she suffered harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. See Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). Therefore, the
agency's dismissal of claim 3 for failure to state a claim was proper.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 30, 2009
__________________
Date
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0120093564
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120093564