01A22861_r
10-22-2002
Lucille E. Jaramillo, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Lucille E. Jaramillo v. Department of Defense
01A22861
October 22, 2002
.
Lucille E. Jaramillo,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01A22861
Agency No. HPOFO1074
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 6, 2002, dismissing 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of national origin (Hispanic) and in reprisal for prior
EEO activity when:
a) On or about January 3, 2001, complainant's supervisor (S1) failed
to re-schedule complainant for training;
b) On or about November 27, 2000, S1 canceled complainant's scheduled
training;
c) On or about November 14, 2000, management (S2) forwarded an electronic
mail message to complainant stating, "it was non-productive to inform him
of a co-worker's (C1's) sins," after complainant had initially sent S2
and S3, an electronic mail message informing them of abuse issues with C1;
d) On or about November 13, 2000, S2 and C1 laughed at complainant while
discussing that S3's computer had been down during the time complainant
sent the electronic mail message informing them of abuses by C1;
e) On or about November 6, 2000, management (S1 and S3) did not select
complainant for a promotion to a Lead Communications Computer Specialist,
GS-334-11 position;
f) On or about November 6, 2000, S1 informed complainant that feedback
received from C1 on complainant's "poor" performance led to her
non-selection for the above position;
g) On or about September 8, 2000, management (S1 and S3) failed
to interview complainant and failed to inform complainant of her
non-selection in accordance with policy; and failed to give complainant
proper consideration for a GS-334-11 Lead Communications Computer
Specialist position;
h) On or about July 20, 2000, complainant's supervisor (S1) yelled and
screamed at her on the phone in front of complainant's co-workers when
complainant called to request annual leave;
On an unspecified date, S1 told complainant "I had a Mexican friend
that was convinced that she was beautiful and she was really ugly and
you both looked like sisters;" and
j) On an unspecified date, S1 belittled other Hispanics within the
organization by talking down to them in front of their peers.
By letter to complainant dated October 18, 2001, the agency accepted only
claims (a) and (b) for investigation. Subsequently, the parties entered
into a settlement agreement, dated February 26, 2002, in which complainant
agreed to withdraw claims (a) and (b). Thereafter, the agency issued
its final decision in which the agency dismissed the remaining claims
(claims (c) - (j)). The agency dismissed claims (c) - (i) pursuant to 29
C.F.R. � 1614.107(a)(2), finding that complainant failed to initiate EEO
Counselor contact within 45 days of the alleged discriminatory events.
The agency also dismissed claims (c), (d), (f), (g), and (j) pursuant
to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
On appeal, complainant argues that her complaint states an overall
claim of harassment beginning approximately from the time S1 became
complainant's immediate supervisor through the time she contacted the
EEO Counselor.
Claims (c) - (i)
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 days of the date of
the matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five days of the effective date of the action.
Complainant initiated EEO counseling on January 9, 2001, which is beyond
the 45-day limit for initial EEO contact regarding claims (c) - (i).
Dismissal of claims (c) - (i) pursuant to 29 C.F.R. � 1614.107(a)(2)
for untimely EEO Counselor contact is therefore proper.
Claim (j)
The regulation set forth at 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 21, 1994).
We concur with the agency that claim (j) fails to state a claim. We find
complainant has not shown any loss, harm or adverse employment action
resulting from the alleged discrimination described. Moreover, even
when considered togther with the other alleged incidents of harassment
in the complaint, we find S1's alleged "talking down" to employees of
Hispanic ethnicity neither sufficiently severe or pervasive to state
a claim of harassment. We find dismissal of claim (j) pursuant to 29
C.F.R. � 1614.107(a)(1) for failure to state a claim is proper.
We therefore AFFIRM the agency's dismissal of the complaint.
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
October 22, 2002
__________________
Date