01A05058_r
08-29-2002
Delia Andrade, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Delia Andrade v. Department of the Navy
01A05058
August 29, 2002
.
Delia Andrade,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A05058
Agency No. DON-FY00-69232-010
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 27, 2000, 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. , Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. , and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant initiated EEO Counselor contact on April 11, 2000.
Informal efforts to resolve her concerns were unsuccessful.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race, sex, age, disability and in reprisal
for prior EEO activity. In its final decision, the agency determined
that complainant's complaint was comprised of two claims, that were
identified in the following fashion:
(a) on June 14, 1999, complainant was tasked with organizing the files
of a male coworker, and restructuring certain work related procedures.
In September 1999, complainant was assigned to reorganize the office
of a female coworker, and to review and destroy all out of date files.
Complainant contends that these assignments constituted work of a higher
graded position, for which she received no extra financial benefit.
(b) as a result of the assignments discussed in claim (a), complainant
allegedly suffered a work related injury and complainant is now concerned
about her ability to return to work.
The agency dismissed claim (a) for untimely EEO Counselor contact.
The agency found that the record in evidence indicates that complainant
initiated leave in November 1999 and did not return to work until January
10, 2000. The agency concluded that complainant initiated EEO Counselor
contact on April 11, 2000, well beyond the 45-day limit for such action.
The agency dismissed claim (b) for failure to state a claim.
Specifically, the agency stated based on the record in evidence,
complainant filed a claim with the Department of Labor 's Office
of Workers' Compensation (OWCP) relative to her disability after her
return to work in January 2000. The agency further stated that alleged
discrimination because of an on-the-job injury is not within the purview
of the anti-discrimination statutes. Furthermore, the agency found any
expressed concern that complainant might not be accommodated fails to
state a claim because the action alleged has not occurred.
Complainant did not raise any new contentions on appeal.
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.
With respect to claim (a), the Commission determines that the alleged
discriminatory events occurred on June 14, 1999 and in September 1999,
but that complainant did not contact an EEO Counselor until April 11,
2000, which is beyond the forty-five day limitation period. Complainant
has provided no adequate justification for the delay in contacting an
EEO Counselor.
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 states
the same claim that is pending before or has been decided by the agency
or Commission.
Regarding claim (b), the Commission finds this claim states the same
claim as claim (a). Complainant indicates that as a result of the
assignment challenged in claim (a), she sustained a work related injury.
We find that complainant is improperly attempting to raise the purported
consequences of the disputed agency action as a separate claim, which
fails to raise any new issue. Consequently, we find that claim (b)
was properly dismissed for the reasons set forth herein.
Accordingly, the agency's final decision was proper and is hereby
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
August 29, 2002
__________________
Date