0120072633
09-11-2007
Seledia P. Shephard, Complainant, v. Margaret Spellings, Secretary, Department of Education, Agency.
Seledia P. Shephard,
Complainant,
v.
Margaret Spellings,
Secretary,
Department of Education,
Agency.
Appeal No. 0120072633
Agency No. ED20072000
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 19, 2007, 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 basis of race (African-American) when:
1. On December 7, 2007 complainant learned that her former position was
filled at a higher grade;
2. Complainant was constructively discharged from the agency.
The agency dismissed claim 1 for failure to state a claim, analyzing
the claim as a nonselection claim and noting that complainant failed to
show that she applied for the position in question. The agency did not
address claim 2. The agency did, however, address an additional claim
characterized as complainant incurring "a stress injury as a result
of not being promoted." We find initially that this latest claim is
more accurately viewed as a description of harm caused by the agency's
actions rather than as an independent claim. On appeal, complainant
argues that the agency ignored her claim of constructive discharge based
on discriminatory treatment going back to 1990.
The record shows that complainant resigned from the agency in July 2006.
Prior to her departure she was employed at the GS-12 level and she
inquired about promotional opportunities but was told that none existed.
Several months after her departure, she learned on or about December 7,
2006, that her former position had been filled at the GS-13 level.
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). Following a review of the
record we affirm the FAD because complainant has failed to state a claim.
Specifically, she not shown how the fact that her successor received a
higher grade results in a present harm or loss to complainant.
Complainant maintains that during her career at the agency she requested
upgrades on a number of occasions, and that these requests were all
denied. We note that had complainant filed a complaint alleging denial
of an upgrade at the time of the denials, she would have stated a valid
claim. Furthermore, the fact that her successor in the position was
granted a higher grade would constitute compelling evidence in support
of such a denial-of-upgrade claim. On its own, however, the fact that
complainant's successor received a higher grade does not state a claim
for the reasons provided above. In addition, any current claim of denial
of an upgrade is untimely, since any such denials occurred prior to July
2006 when complainant left the agency, and her initial EEO Counselor
contact occurred on December 12, 2006, which is beyond the forty-five
(45) day limitation period.
As regards complainant's claim of constructive discharge, the allegation
is again untimely. The alleged discriminatory actions leading to her
departure from the agency all occurred prior to July 2006 and therefore
her December 12, 2006 Counselor contact was untimely. To the extent
that complainant contends that her December 7, 2006 discovery that her
successor received a higher grade constitutes part of an ongoing claim
of constructive discharge, we find such an argument to be unpersuasive.
Since complainant left the agency in July 2006, according to complainant's
own allegations, the agency actions up to that point were sufficient
to cause her to leave. Thus any additional discriminatory act by the
agency subsequent to complainant's departure could not be said to be a
cause of that departure. Since the filling of complainant's position
at a higher grade occurred after complainant left, such an action cannot
be said to constitute part of the same constructive discharge claim.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
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
September 11, 2007
__________________
Date
2
0120072633
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120072633