01A22359
08-26-2003
Margaret L. McMullen, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Margaret L. McMullen v. Department of the Army
01A22359
August 26, 2003
.
Margaret L. McMullen,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A22359
Agency No. AAHTFO9809I0900
Hearing No. 100-A0-8059X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission affirms the agency's
final order.
The record reveals that during the relevant time, complainant was employed
as a Senior Policy Analyst, NF-5, at the agency's Community and Family
Support Center located in Alexandria, Virginia. Complainant sought EEO
counseling and subsequently filed a formal complaint on February 21,
1999, alleging that she was discriminated against on the bass of her sex
(female) and age (D.O.B. 9/20/42) when:
she was subjected to harassment by management when she was accused of
incompetence and insubordination; and
she was subjected to a hostile work environment when management used
foul and abusive language in her presence.<1>
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
sustaining the agency's Partial Dismissal of Claims, and finding no
discrimination as to the remaining claims. The agency's final order
implemented the AJ's decision.
On appeal, complainant, through her attorney, contends that the
AJ improperly sustained the agency's Partial Dismissal of Claims,
arguing that the dismissed claims should have been included as part of a
continuing violation. Complainant contends that the AJ also improperly
granted the agency's motion for a decision without a hearing. The agency
requests that we affirm its final order. As an initial matter we note
that, as this is an appeal from a decision issued without a hearing,
pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject
to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
Upon review, the Commission finds that the agency's dismissal of several
claims on the grounds of untimely EEO Counselor contact was proper.
We note that these claims raise discrete incidents that should have
been pursued by complainant within 45 days of their occurrence and that
none of the claims occurred within 45 days of complainant's initial EEO
Counselor contact. See Ornelas v. Department of Justice, EEOC Appeal
No. 01995301 (September 26, 2002).
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine dispute
of material fact exists. See Petty v. Department of Defense, EEOC
Appeal No. 01A24206 (July 11, 2003). We find that the AJ's decision
referenced the appropriate regulations, policies, and laws. Further,
construing the evidence to be most favorable to complainant, we note
that complainant failed to present evidence that the agency's actions
were motivated discriminatory animus toward her protected classes.
Therefore, we AFFIRM the agency's final order.
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
August 26, 2003
__________________
Date
1 Complainant initially raised the following
additional claims: 1) complainant's duties and responsibilities as Senior
Policy Analyst, NF-5, were taken away and she was reassigned on May 16,
1994; and, she was assigned demeaning tasks more appropriate for lower
graded employees from August 1995 to June 1998; 2) from August 1993 to
June 1998, her performance appraisals were downgraded and erroneous,
negative statements were attached; 3) she was not treated on an equal
basis compared to treatment of male co-workers when management gave
increased responsibility and promotions to her male co-workers from
the date of her reassignment on May 16, 1994 to July 1998; and 4) she
was threatened with dismissal two years ago. In a Notice of Partial
Dismissal, dated October 15, 1999, the agency dismissed all of these
claims, for failure to comply with the applicable time limits.