Katherine L. Johnson, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 16, 1999
01983519 (E.E.O.C. Apr. 16, 1999)

01983519

04-16-1999

Katherine L. Johnson, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Katherine L. Johnson v. Department of the Army

01983519

April 16, 1999

Katherine L. Johnson, )

Appellant, )

)

v. ) Appeal No. 01983519

) Agency No. BPARFO980410740

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

______________________________)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning 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. The final agency decision was issued on

March 11, 1998. The appeal was postmarked March 30, 1998. Accordingly,

the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in

accordance with EEOC Order No. 960, as amended.

On December 8, 1997, appellant filed a formal complaint, alleging that

she was the victim of unlawful employment discrimination on the basis

of reprisal.

On March 11, 1998, the agency issued a final decision. Therein,

the agency determined that appellant's complaint was comprised of two

allegations, that were identified in the following fashion:

a. You were reprised against by the Fort Huachuca EEO Officer when he

delayed the processing of your discrimination complaint for 50 days.

The EEO Officer advised you that the delay was due to the shortage of

human resources in the office.

b. You were reprised against when you formal complaint was dismissed by

the EEO Officer for untimeliness, the alleged discriminatory event took

place 10 years ago, and was filed against a former Garrison Commander

and the Civilian Personnel Office.

The agency dismissed allegation (a) for failure to state a claim.

The agency dismissed allegation (b) on the grounds that it addresses a

matter raised in a prior complaint.

The Commission determines that both allegations are properly analyzed

in terms of whether they state a claim.

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, 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;

�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).

The two allegations raised by appellant in the instant complaint concern

the processing of prior complaints she filed. The Commission has held

that an allegation which relates to the processing of a previously

filed complaint does not state an independent allegation of employment

discrimination. See Kleinman v. USPS, EEOC Appeal No. 01965883 (March

13, 1997). If a complainant is dissatisfied with the processing of

her pending complaint, she should be referred to the agency official

responsible for the quality of complaints processing. Agency officials

should earnestly attempt to resolve dissatisfaction with the complaints

process as early and expeditiously as possible. See EEO MD 110 (4-8).

Furthermore, given the nature of appellant's allegations of improper

processing, we find that the proper method for addressing such matters

would be within the continued processing of the previously filed complaint

or on appeal from the final agency decision issued therein. Any remedial

relief to which appellant would be entitled would necessarily involve

the processing of the underlying complaint. Based on the foregoing,

we find that the agency properly dismissed appellant's complaint.

Accordingly, the agency's final decision is AFFIRMED.

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 (S0993)

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 filed your appeal with the

Commission. 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. 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:

April 16, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations