01a00148
02-18-2000
Joanie Jackson, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Joanie Jackson, )
Complainant, )
)
v. ) Appeal No. 01A00148
) Agency No. 09905J0100
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
On October 11, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) issued on August 31, 1999,
pertaining to her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.<1> The Commission accepts the current appeal
in accordance with EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed the
instant case for failure to state a claim.
BACKGROUND
The record reflects that for the relevant period of time, complainant was
employed by the U.S. Army Corps of Engineers as a secretary, GS-0318-06.
Complainant states, that on April 8, 1999, she received a memorandum
from her supervisor alerting her that she twice failed to sign out before
leaving work. Complainant responded to this memo by acknowledging that
she had failed
to sign out on April 6, 1999 and April 7, 1999, but two co-workers
also violated the rules of the attendance policy and had not received a
similar memo. In addition, complainant states that she in fact requested
that her supervisor discuss with her any deficiencies in her employment
when they occur, as opposed to after she receives her evaluation,
in an effort to immediately correct any problem, so that it would not
jeopardize her evaluation.
Believing that she was the victim of discrimination, on April 14,
1999, complainant initiated contact with an EEO Counselor. During the
counseling period, complainant stated that she being harassed by her
supervisor when she received a memorandum from him informing her she
failed to sign out on April 6, 1999 and April 7, 1999.
Counseling failed, and on June 17, 1999,complainant filed a formal
complaint claiming that she has been the victim of unlawful employment
discrimination on the basis of reprisal (prior EEO activity). The formal
complaint was comprised of the matters for which complainant underwent
EEO counseling, discussed above.
On August 31, 1999, the agency issued a final decision dismissing the
instant case for failure to state a claim. Specifically, the agency found
that the above action did not render complainant an aggrieved employee.
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an
agency shall dismiss a complaint that fails to state a claim. 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, .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).
In the instant matter, complainant alleged that the agency had engaged
in discriminatory conduct when she was issued a memorandum informing
her that she failed to sign out on April 6, 1999 and April 7, 1999. Upon
review, we find that the agency's dismissal of complainant's complaint
was proper. The Commission finds that complainant's claim addresses the
issuance of an official discussion on April 8, 1999. The record contains
no evidence that the discussion (memorandum)
was made a part of complainant's personnel file. Moreover, there is no
evidence reflecting that any discipline was issued as a result of the
memorandum. See Miranda v. United States Postal Service, EEOC Request
No. 05920308 (June 11, 1992); Devine v. United States Postal Service,
EEOC Request Nos. 05910268, 05910269 and 05910270 (April 4, 1991).
Furthermore, complainant's contention that the official discussion
(memorandum) was an example of the agency's attempt to harass her is not
persuasive. Complainant has not alleged facts sufficient to show that
she was subjected to discriminatory harassment that was sufficiently
severe or persuasive to alter the conditions of her employment. Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). Accordingly, the agency's decision dismissing complainant's
complaint for failure to state a claim was proper.
CONCLUSION
For the reasons set forth herein, the Commission hereby AFFIRMS the
decision of the agency dismissing the present case for failure to state
a claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644,
37,661 (1999) (to be codified and hereinafter referred to as 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 (S1199)
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:
February 18, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.