0120131937
08-21-2013
Paula B. Matthews, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Paula B. Matthews,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120131937
Agency No. 4U1L13001
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 19, 2013, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a School Age Program Coordinator at the Agency's Joint Base facility in Charleston, South Carolina.
On February 13, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and color (Black) when:
1. The Youth Center Director, the Readiness Flight Chief and the Human Resources Specialist failed to properly administer the Grievance Process;
2. The Youth Center Director, the Readiness Flight Chief and the Human Resources Specialist failed to provided effective management support to Complainant when attempting to administer disciplinary action for a subordinate employee; negatively impacting Complainant's youth programs.
3. The Youth Center Director and the Readiness Flight Chief failed to notify Complainant for a pending job announcement for a Training and Curriculum Specialist position.
Subsequently, Complainant requested that the Agency amend her complaint on March 7, 2013. Complainant alleged that she was subjected to discrimination on the bases of race, color and reprisal for the instant matter when, on February 27, 2013, the EEO Counselor allegedly refused to use Complainant's witness list and changed Complainant's witness list. Complainant asserted that the EEO Counselor conspired with management to sabotage her EEO complaint; cited incorrect regulation; refused to place a date or coversheet on the Counselor's report; and failed to provide Complainant's representative with a copy of the report.
The Agency dismissed claims (1) and (2) pursuant 29 C.F.R. � 1614.107(a)(1) for failure to state a claim and claim (3) pursuant to 29 C.F.R. � 1614 107(a)(8) for alleging dissatisfaction with the processing of her EEO complaint. This appeal followed.
ANALYSIS AND FINDINGS
In claim (3), Complainant asserted that she was subjected to discrimination based on actions by the EEO Counselor during the processing of her EEO complaint. EEOC Regulation 29 C.F.R. � 1614 107(a)(8) provides that an Agency shall dismiss claims alleging dissatisfaction with the processing of a prior complaint. Dissatisfaction with the EEO process must be raised within the underlying complaint, not as a new complaint. See EEOC - Management Directive 110 (MP-110) 5-23, 5-25 to 5-26 (Nov. 9, 1999). On appeal, Complainant asserted through her representative that the matter constituted unlawful retaliation. However, we find that Complainant's claim (3) clearly involves her claim of dissatisfaction with the processing of the instant matter. The Agency has taken note of her allegations and conducted an inquiry into the assertions made by Complainant. However, despite Complainant's arguments on appeal, claim (3) falls within a claim of dissatisfaction with the processing of her EEO complaint. Therefore, we determine that the Agency's dismissal of claim (3) was proper.
Therefore, we turn to the Agency's dismissal of claims (1) and (2). On appeal, we note that Complainant included the basis of sex (female). A fair reading of the complaint and argument on appeal, the essence of claims (1) and (2) is that Complainant was subjected to discrimination based on race, color and sex when Complainant tried to discipline a subordinate employment but management did not support her. 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
Upon review of the record, we find that Complainant has asserted that management did not support her attempts to discipline another employee. She argued that the failure on the part of management negatively impacted her youth program. However, we find that these assertions to not tantamount to a harm or loss with respect to the terms, conditions or privilege of Complainant's employment. As such, we find that the dismissal of claims (1) and (2) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 21, 2013
__________________
Date
2
0120131937
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131937