01976738_r
03-10-1999
Jamie S. Gindling, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.
Jamie S. Gindling, )
Appellant, )
)
v. ) Appeal No. 01976738
) Agency No. DFAS-PSO-IN-97-001
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Finance and )
Accounting Service), )
Agency. )
)
DECISION
On June 2, 1997, appellant initiated contact with an EEO Counselor.
Informal efforts to resolve her concerns were unsuccessful.
On July 2, 1997, appellant filed a formal complaint, alleging that she
was the victim of unlawful employment discrimination on the bases of
sex and race.
On August 11, 1997, the agency issued a final decision. Therein, the
agency found that appellant's formal complaint was comprised of three
allegations, that were identified in the following fashion:
1. You alleged discrimination . . . when you were not promoted to your
career ladder target grade GS-12 in August 1994. You were selected for
the career ladder position of Staffing Specialist, GS-11/12, August 16,
1993, and you were not promoted to the GS-12 level. You allege that
you were denied your promotion because you are a Caucasian female.
2. You alleged discrimination when [an agency Chief] informed you of
her intent to fill a permanent GS-212-11, Personnel Staffing Specialist
position at the GS-12 level and that management was attempting to select a
white male, priority placement eligible in an attempt to fill the position
from the PPP at the GS-12 level rather than to temporarily promote you.
In regard to this allegation, appellant stated in her formal complaint
that the agency Chief indicated that �she would hire someone from the
outside, whose performance she's never had the opportunity to personally
observe, before she'd promote me.� In a memorandum dated May 11, 1997,
appellant also indicated that the agency Chief identified the party who
was selected for the position, and that she informed appellant that
the selected party was a better choice because he has an established
reputation and would be �good for the organization.�
3. You alleged discrimination stating that [an agency Chief] treats
black employees more favorably than white employees. According to you,
two white female employees carry the brunt of the work load because
black employees don't do their jobs.
In regard to this allegation, appellant stated that the agency Chief's
staffing practices �overall demonstrate favoritism toward black females
and white males.�
The agency dismissed allegation 1 for failure to initiate contact with
an EEO Counselor in a timely fashion; allegation 2 on the grounds that
appellant alleged that a proposed agency action is discriminatory;
and allegation 3 for failure to state a claim.
On appeal, appellant reiterates matters relating to the allegations raised
in her formal complaint. Appellant also argues that an agency official
created such a hostile work environment for her that she accepted a
position with a lower grade that has resulted in a significant reduction
in pay and benefits.
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 Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
In allegation 1, we find that appellant clearly alleged that she
was denied a career-ladder promotion. Each day that a career-ladder
promotion is not given, when an employee is eligible, is a recurrence
of the incident. The Commission has previously held that, unlike a
non-selection for a competitive promotion which, once the selection
decision is made, becomes a completed act, the denial of a career-ladder
promotion occurs each and every day after the date of eligibility that the
promotion is not granted. Brown v. Department of Commerce, EEOC Request
No. 05890978 (January 10, 1990). Here, appellant alleged that she had
not received a career ladder GS-12 promotion since she became eligible for
the promotion in August 1994. Appellant was denied a promotion each and
every day from her date of eligibility up to the date that she initiated
contact with an EEO Counselor in June 1997. We find appellant's initial
EEO Counselor contact to be timely. Accordingly, the agency's decision
to dismiss allegation 1 was improper and is REVERSED. Allegation 1 is
REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
EEOC Regulation 29 C.F.R. �1614.107(e) provides, in part, that the agency
shall dismiss a complaint or a portion of a complaint that alleges that a
proposal to take a personnel action, or other preliminary step to taking
a personnel action, is discriminatory.
We find that a fair reading of allegation 2 is that appellant alleged
that an agency Chief informed her that she had selected an individual
for a GS-12 position instead of appellant. We find that contrary to
the agency's findings, allegation 2 is comprised of a completed action,
i.e., appellant's nonselection, and is not a proposed personnel action.
Accordingly, the agency's decision to dismiss allegation 2 was improper
and is REVERSED. Allegation 2 is REMANDED to the agency for further
processing in accordance with this decision and applicable regulations.
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal
of a complaint which fails to state a claim within the meaning of
29 C.F.R. �1614.103. In order to establish standing initially under
29 C.F.R. �1614.103, a complainant must be either an employee or an
applicant for employment of the agency against which the allegations of
discrimination are raised. In addition, the allegations must concern an
employment policy or practice which affects the individual in his capacity
as an employee or applicant for employment. An agency shall accept a
complaint from any aggrieved employee or applicant for employment who
believes that he or 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. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
In allegation 3, appellant alleged that an agency Chief's �overall�
staffing practices reflect favoritism toward black female and white male
employees. We find that appellant has not alleged a personal harm or
loss with regard to a term, condition or privilege of her employment.
Accordingly, the agency's decision to dismiss allegation 3 for failure
to state a claim was proper and is AFFIRMED.
Finally, we note that for the first time on appeal, appellant argues that
she is the victim of a hostile work environment. Appellant is advised
that if she wishes to pursue this matter, through the EEO process,
she should initiate contact with an EEO Counselor within 15 days after
she receives this decision. The Commission advises the agency that if
appellant seeks EEO counseling regarding the new allegations within the
above 15-day period, the date appellant filed the appeal statement in
which she raised these allegations with the agency shall be deemed to
be the date of the initial EEO contact, unless she previously contacted
a counselor regarding these matters, in which case the earlier date
would serve as the EEO Counselor contact date. Cf. Alexander J. Qatsha
v. Department of the Navy, EEOC Request No. 05970201 (January 16, 1998).
ORDER (E1092)
The agency is ORDERED to process the remanded allegations (allegations
1 and 2) in accordance with 29 C.F.R. �1614.108. The agency shall
acknowledge to the appellant that it has received the remanded allegations
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to appellant a copy of the investigative file and
also shall notify appellant of the appropriate rights within one hundred
fifty (150) calendar days of the date this decision becomes final, unless
the matter is otherwise resolved prior to that time. If the appellant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file
a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the
date you filed your complaint with the agency, or your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 (Z1092)
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:
March 10, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations