01983838
09-09-1999
Valerie D. Fashion-Dawson, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Valerie D. Fashion-Dawson v. Department of the Army
01983838
September 9, 1999
Valerie D. Fashion-Dawson, )
Appellant, )
) Appeal No. 01983838
v. ) Agency No. F0980210150
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq. The FAD was dated March
12, 1998, and received by appellant on March 19, 1998. The appeal was
postmarked on April 15, 1998. Accordingly, the appeal is timely (see
29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC Order
No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint for failure to state a claim.
BACKGROUND
Appellant filed a formal complaint on February 3, 1998, alleging
discrimination on the bases of race (Black) and reprisal (prior EEO
activity) when:
(1) on December 8, 1997, her supervisor told her that she was taking
disciplinary action against appellant for taking excessively long breaks;
(2) on December 8, 1997, her supervisor told her that she was being
watched;
(3) on December 9, 1997, two employees in the library, where appellant
worked, refused to cover the front desk so that she could go to a
scheduled EEO Counselor meeting;
(4) on December 16, 1997, during a training session entitled
"Consideration of Others," appellant was told that she must hand over the
tape that she was recording the session with or be arrested by the MPs;
(5) from December 9, 1997 through December 11, 1997, an individual was
sent to watch the library and make sure that there was no trouble when
appellant's supervisor was absent from the library;
(6) on November 25, 1997, after appellant requested reassignment out
of the library, individuals at the Civilian Personnel Advisory Center
(CPAC) offered appellant a temporary work detail because they did not
have any reassignment positions available.
We note that appellant turned down the offer for a temporary detail
(allegation 6), and also that appellant maintained that the above listed
allegations were part of a pattern of mistreatment of minorities in her
workplace.
In its FAD, the agency accepted allegations (1) through (5) of the
complaint and dismissed allegation (6) for failure to state a claim.
Specifically, the agency said that allegation (6) failed to state a
claim under EEOC Regulation 29 C.F.R. �1614.107(a), and because it was
merely a preliminary step under EEOC Regulation 29 C.F.R. �1614.107(e).
This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency
shall dismiss a complaint which fails to state a claim pursuant to
29 C.F.R. �1614.103. 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, national origin, age or disabling condition.
29 C.F.R. �1614.103; �1614.106(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 Air Force,
EEOC Request No, 05931049 (April 21, 1994). To establish that he is an
"aggrieved employee" and therefore states a claim under the regulations,
a complainant must allege that he was injured in fact.
We find that appellant's allegation fails to state a claim because she has
failed to show how she was injured by an offer of a temporary work detail.
Appellant declined the offer and experiences no repercussions from that
action.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
September 9, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations