0120082475
08-19-2008
Kathleen M. Wysocki, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Kathleen M. Wysocki,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120082475
Agency No. ARCEHECSA07AUG02868
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated April 4, 2008, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. In her complaint, complainant alleged
that she was subjected to discrimination on the bases of disability1
(stuttering) and age (59 at the time of the most recent incident) when:
1. From 1997 to the present, complainant has been exposed to harassment.
Specifically, complainant alleged the following incidents: from 1997
to the present, complainant has been working from an inaccurate job
description and the work she performs is that of a GS-14, not a GS-13;
complainant's performance standards for the period from November 1, 2005,
to October 31, 2006 were not rated properly, complainant was only rated
on 7 of 16 standards, and DA Form 7222 was incorrectly marked; and on
August 26, 2007, complainant's supervisor (RMO) asked complainant to read
a document out loud in order to embarrass her because of her stutter.
The agency dismissed the claim, finding that the incidents concerning the
inaccurate job description and the performance standards were untimely
raised, and the incident concerning complainant being asked to read a
document out loud failed to state a claim. In addition, the agency found
that the latter issue was moot because RMO had retired from the agency
and complainant had not requested compensatory damages. On appeal,
complainant repeats her allegation that she has been working under
an inaccurate job description for a number of years, but she does not
address the agency's findings regarding untimely EEO Counselor contact.
ANLAYSIS AND FINDINGS
The Supreme Court has held that a complainant alleging a hostile work
environment will not be time barred if all acts constituting the claim
are part of the same unlawful practice and at least one act falls within
the filing period. See National Railroad Passenger Corp. v. Morgan,
122 S.Ct. 2061 (June 10, 2002). The Court further held, however, that
"discrete discriminatory acts are not actionable if time barred, even
when they are related to acts alleged in timely filed charges." Id.
Finally, the Court held that such untimely discrete acts may be used as
background evidence in support of a timely claim. Id.
As regards the inaccurate job description and the performance standards,
the record discloses that the alleged discriminatory events occurred
in 1997 and December 16, 2006 respectively, but complainant did not
initiate contact with an EEO Counselor until August 2, 2007, which is
beyond the forty-five (45) day limitation period. On appeal, complainant
has presented no persuasive arguments or evidence warranting an extension
of the time limit for initiating EEO Counselor contact. The Commission
finds that receiving an inaccurate job description and an improperly
rated evaluation are discrete acts. However, assuming such acts were
"related to" the timely-raised August 26, 2007 incident, complainant's
harassment claim would be timely. The Commission further finds, however,
that the incidents are too dissimilar to be considered part of the
same discriminatory practice. Specifically, the record shows that the
issues regarding complainant's job description and evaluation relate to
an ongoing dispute between complainant and various management officials
at the agency, but not specifically RMO. Furthermore, complainant has
not shown that these incidents are related to or involve her alleged
disability, unlike the August 2007 incident. Complainant has therefore
not shown that the earlier incidents are part of the same pattern and
practice of discrimination.
As regards the August 2007 incident, the Commission finds that the
complaint fails to state a claim under the EEOC regulations because
complainant failed to show that the single incident of harassment had the
purpose or effect of unreasonably interfering with her work performance
and/or creating an intimidating, hostile, or offensive work environment.
See McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982). Nor has she shown she suffered harm or loss with respect to a
term, condition, or privilege of employment for which there is a remedy.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). Accordingly, the agency's final decision dismissing
complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
August 19, 2008
__________________
Date
1 For purposes of this decision the Commission assumes without finding
that complainant is an individual with a disability. 29 C.F.R. �
1630.2(g)(1).
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0120082475
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082475