01A43816_r
09-10-2004
Shirley A. Davis, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Shirley A. Davis v. Department of Veterans Affairs
01A43816
September 10, 2004
.
Shirley A. Davis,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A43816
Agency No. 200K-0537-2003104516
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) dated March 16, 2004, 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.
On September 16, 2003, complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful.
In a formal complaint, filed on December 1, 2003, complainant alleged
that she was subjected to discrimination on the basis of reprisal for
prior EEO activity when<1>:
(1) on or about September 15, 2003, she learned that her Supervisor
intentionally changed the area of consideration on a vacancy announcement
without interviewing the candidates (her and one other candidate)
who applied under the original vacancy announcement (MPA 03-119W)
from �Chicago Commuting Area� to �Nationwide.� Complainant claimed
the re-posting of the announcement (MPA 03-216W) was done to prevent
her from being selected;
(2) on or about March 19, 2003, she was notified that she did not meet
the minimum requirement of time in grade at the GS-11 level for promotion
to the position of Supervisory Diagnostic Radiologic Technologist, GS-12,
under MPA 03-119W;<2>
(3) in August 2001, she received additional job duties of the
Administrative Officer, GS-12, her Supervisor refuses to give her credit
for doing a good job;
(4) from January 2003 to September 2003, she was subjected to harassment
when her supervisory authority was undermined with her employees; and
(5) from January 2003 to September 2003, she was subjected to harassment
when her time and leave were questioned.
On February 27, 2004, the agency issued a document identified as "Notice
of Partial Acceptance of EEO Complaint No. 200K-0537-2003104516."
Therein, the agency accepted claims (1) and (2) for investigation.
The agency dismissed claims (3), (4), and (5) pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact. Specifically,
the agency determined that the alleged discriminatory events occurred
in August 2001, and from January 2003 to September 2003, but that
complainant did not initiate EEO Counselor contact until September
16, 2003. The agency also dismissed claims (4) and (5) pursuant to 29
C.F.R. � 1614.107(a)(2), for raising a matter that had not been brought to
the attention of a Counselor and was not like or related to a matter that
had been brought to the attention of a counselor. Furthermore, the agency
dismissed claims (4) and (5), on alternative grounds of failure to state
a claim, pursuant to 29 C.F.R. � 1614.107(a)(1), finding that complainant
was not aggrieved. The agency determined that complainant failed to
specify the details and dates of the alleged discriminatory incidents.
On March 16, 2004, the agency issued a �Recision of Notice of Partial
Acceptance of [the captioned complaint] and Dismissal of [the captioned
complaint] -Final Agency Decision (FAD).� Therein, the agency stated that
it was rescinding its February 27, 2004 Notice of Partial Acceptance.
The agency further stated that it was dismissing the instant complaint
and that its March 16, 2004 letter would serve as the FAD. The agency
dismissed claim (1) on the grounds that it states the same claim that was
raised in a prior complaint, Agency No. 200K-0537-2003100972, concerning
complainant's non-selection under Merit Promotion Announcement (MPA)
No. 03-216W.
The agency dismissed claims (2) and (3) on the grounds of untimely EEO
Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The agency
determined that complainant did not contact an EEO Counselor contact
until 177 and 730 days respectively after the alleged discriminatory
events that took place on March 19, 2003, and in August 2001.
The agency dismissed claims (4) and (5) for raising a matter that had not
been brought to the attention of a Counselor and was not like or related
to a matter that had been brought to the attention of a counselor.
The agency dismissed claims (4) and (5) on the alternative grounds
of failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1),
finding that complainant was not aggrieved. The agency further determined
that complainant failed to specify the details and dates of the alleged
discriminatory incidents.
As a threshold matter, we reject the agency's argument on appeal that
the instant appeal was untimely filed. The agency argues that the FAD
was received by complainant's former attorney at his address of record
on April 2, 2004, and that complainant's appeal was untimely filed on
May 12, 2004. The record contains a copy of a Notice of Rights and
Responsibilities wherein complainant identified her attorney's address
as 77 W. Washington, Suite 707, Chicago, Illinois, 60602. A copy of
the certified mail receipt in which the agency sent the FAD identifies
the address as �707" Washington Street. Morever, a United States Postal
Service Track & Confirm print out reflects that the FAD was delivered on
April 2, 2004 in �Chicago, Illinois 60602" without any further details
of the address. Given the disparity in the identification of addresses
as discussed above, we determine that there is insufficient evidence of
record reflecting that complainant's former attorney received the FAD
on April 2, 2004, and we accept the instant appeal as timely filed.
Claim (1)
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides in part that the
agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
Complainant claimed that on or about September 15, 2003, she learned
that her Supervisor intentionally changed the area of consideration
on a vacancy announcement without interviewing the candidates (her and
one other candidate) who applied under the original vacancy announcement
(MPA 03-119W) from �Chicago Commuting Area� to �Nationwide.� Complainant
further claimed the re-posting of the announcement (MPA 03-216W) was done
to prevent her from being selected. We find that complainant's claim is
an elaboration of the matter that complainant raised in a prior complaint
(Agency No. 200K-0537-2003100972). Therefore, we find that the agency
properly dismissed claim (1) for stating the same claim.
Claims (2) and (3)
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 (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
We find that a review of the record reveals that the alleged
discriminatory events occurred on March 19, 2003 (claim (2)) and in
August 2001 (claim (3)), but that complainant did not initiate contact
with an EEO Counselor until September 16, 2003, which is beyond the
forty-five-day limitation period. On appeal, complainant presented no
persuasive arguments or evidence warranting an extension of the time limit
for initiating EEO Counselor contact. Therefore, we find that the agency
properly dismissed claims (2) and (3) for untimely Counselor contact.
Claims (4) and (5)
Complainant contends that she was subjected to harassment when her
supervisory authority was undermined with her employees (claim (4))
and her time and leave were questioned (claim (5)). The Commission
determines that these matters do not identify a personal loss or harm
regarding a term, condition, or privilege of complainant's employment.
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
21, 1994). Complainant failed to identify what actions were taken
to undermine her supervisory authority or how she was harmed by the
questioning of her time and leave.
Because we affirm the dismissal of claims (4) and (5) for the reason
stated herein, we will not address alternative grounds of dismissal.
Accordingly, the agency's decision to dismiss claims (1) - (5) is
AFFIRMED.
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 10, 2004
__________________
Date
1For purposes of clarity, the Commission has
renumbered complainant's claims as claims (1) - (5).
2The Commission notes that in its February 27, 2004 �Notice of Partial
Acceptance of EEO Complaint No. 200-K-0537-2003104516,� the agency
inadvertently identified the date of alleged discriminatory event as
September 5, 2003, instead of March 19, 2003.