01996689
09-27-2001
Glenys K. Rodden, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Glenys K. Rodden v. United States Department of Agriculture
01996689
September 27, 2001
.
Glenys K. Rodden,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01996689
Agency No. 971205
DISMISSAL
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated
against on the bases of race (White) and reprisal (prior EEO activity
under Title VII) when she was not promoted and she was allegedly coerced
into retirement. For the following reasons, the Commission AFFIRMS
the agency's final decision dismissing the constructive discharge claim
for untimely EEO counselor contact. The Commission also dismisses the
promotion claim for the reasons set herein.
The record reveals that during the relevant time, complainant was
employed as a District Program Clerk, GS-1101-5 at the agency's Ridgeland
District Office in Ridgeland, Mississippi. The record also reveals
that complainant was reassigned to the Rankin County Office in Rankin,
Mississippi, where she remained until she accepted a buyout and retired.
Believing she was a victim of discrimination, complainant sought EEO
counseling in April 1996, and subsequently filed a formal complaint on
August 25, 1997. At the conclusion of the investigation, complainant was
informed of her right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
Complainant requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of race discrimination. In particular, the agency noted
that complainant did not identify any similarly situated employees not
within her protected class that were treated more favorably. The agency
also concluded that complainant failed to establish a prima facie
case of reprisal discrimination. Specifically, the agency found that
complainant's supervisors were not aware of her prior protected activity.
On appeal, complainant contends that the FAD was based on facts that
were not accurate. Complainant also contends that she was timely.
The agency requests that we affirm its FAD.
Constructive Discharge Claim
EEOC Regulation 29 C.F.R. �� 1614.107(a)(2) provides, in pertinent
part, that an agency shall dismiss an entire complaint, or portion
thereof, that fails to comply with applicable time limits contained
in � 1614.105. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that 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'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. Dep't of the Air Force, EEOC Request
No. 05931049 (April 22, 1994).
Upon review, the Commission finds that complainant's claim was properly
dismissed for untimely EEO counselor contact. The record evidence
establishes that on November 30, 1996, complainant's resignation became
effective. The record shows that complainant sought EEO counseling on
May 22, 1997, well beyond the forty-five (45) day time limit. We note
that complainant fails to offer any explanation that would support an
extension of the forty-five (45) day time limit to seek EEO counseling.
Furthermore, the record evidence shows that complainant had been involved
in the EEO process before and should have been aware of the time limit
within which to seek counseling. Based on the foregoing, we find that the
agency properly dismissed complainant's claim of constructive discharge
due to untimely EEO counselor contact.
Promotion Claim
Upon review, the Commission also finds that complainant's claim should
have been dismissed for untimely EEO counselor contact. The record
evidence establishes that in March 1994, her supervisor (S1) gave her a
new position description for a District Program Clerk, GS-6. The record
reflects that approximately a week later, S1 informed her that she
was being reassigned and that her promotion was denied. The record
also reflects that a week or so later, the agency hired two temporary
GS-4 workers.
The record evidence also shows that complainant sought EEO counseling on
April 30, 1996, well beyond the forty-five (45) day time limit. We note
that complainant contends that she planned to file an EEO complaint, but
she was threatened by S1, and did not file a complaint because of possible
retaliation. Although complainant indicates that she feared reprisal if
she pursued an EEO complaint, the Commission has repeatedly held that mere
fear of reprisal is an insufficient justification for extending the time
limitation for contacting an EEO Counselor. See Duncan v. Department
of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998); Kovarik
v. Department of Defense, EEOC Request No. 05930898 (December 9, 1993).
Based on the foregoing, we find that complainant did not engage in timely
EEO counselor contact and thus, her claim is dismissed. Therefore, after
a careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
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
September 27, 2001
__________________
Date