Dieldra J. Square, Complainant,v.Colin L. Powell, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionFeb 1, 2001
01A10425 (E.E.O.C. Feb. 1, 2001)

01A10425

02-01-2001

Dieldra J. Square, Complainant, v. Colin L. Powell, Secretary, Department of State, Agency.


Dieldra J. Square v. Department of State

01A10425

February 1, 2001

.

Dieldra J. Square,

Complainant,

v.

Colin L. Powell,

Secretary,

Department of State,

Agency.

Appeal No. 01A10425

Agency No. 99-51

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision, dated September 15, 2000, pertaining to 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.<1>

The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.

In a complaint dated August 19, 1999, complainant claimed that she was

discriminated against based on sex, race and reprisal when on July

2, 1999, she was not selected for the Passport Specialist position,

GS-967-5/7/9. The agency issued a decision on September 21, 1999,

dismissing the complaint on the grounds that the matter was not brought

to the attention of an EEO Counselor. Complainant appealed the decision

to the Commission.

In the prior decision, the Commission concluded that the record was

incomplete and therefore a decision could not be rendered. The agency

was ordered to conduct a supplemental investigation wherein it would

address: (1) whether complainant called an EEO Counselor in an attempt

to initiate contact; and (2) when she received the notice informing

her of her non-selection. Square v. Department of State, EEOC Appeal

No. 01A00565 (April 14, 2000).

In response to the Commission's order, the agency conducted a

supplemental investigation and issued another decision. The September

15, 2000 decision again determined that complainant failed to raise the

matters in her complaint with an EEO Counselor. Relying upon information

collected through several interrogatories, the agency found complainant's

justifications to be insufficient. Specifically, the agency noted that

complainant claimed that she tried to contact several Counselors between

May and July 1999. Complainant admitted that she named Counselor A on her

complaint, but never spoke with her. According to complainant, she left

messages and never received a response. Further, complainant asserted

that the relocation of her office; sequestered jury service in June 1999;

and training classes impaired her ability to contact a Counselor.

Complainant's assertions were disputed by the three Counselors named in

her responses. The three Counselors denied that she contacted them.

Further, the Regional Director of the Passport Agency acknowledged

that the office was relocated in April 1999, and that although some

confusion regarding telephones occurred, employees always had access

to a telephone. Regarding when complainant received notice of her

non-selection, complainant contends that she never received a written

notification but learned by �word of mouth� in May 1999. In contrast,

the Personnel Management Specialist stated that agency policies

were followed and complainant was sent a letter, dated July 2, 1999,

notifying her of the non-selection. The Specialist asserted that there

was no evidence that the letter was returned in the mail. Based on

the information obtained from the interrogatories, and complainant's

prior experience with the EEO process, the agency was not persuaded

that complainant's failure to contact a Counselor should be excused.

Concluding that complainant should have contacted an EEO Counselor,

the agency dismissed the complaint.

The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in

pertinent part, that an agency shall dismiss a complaint 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.

We find that a review of the record supports the agency's determination

that complainant failed to contact an EEO Counselor regarding the matters

in her complaint. Further, we are not persuaded by complainant's reasons

for failing to obtain counseling. As noted above, all the counselors

named by complainant reported no record of a call from complainant.

Even assuming arguendo that there existed a problem with telephones,

other means were available for contacting the EEO office. Moreover,

we do not find that jury duty or training prevented complainant from

contacting a Counselor. We also note that complainant has previously

filed complaints and acknowledges an understanding of EEO procedures.

Accordingly, based on a review of the entire record, including arguments

and evidence not specifically discussed herein, the agency's decision

to dismiss the complaint is AFFIRMED.

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

February 1, 2001

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.