Faustina Green, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.

Faustina Green v. Department of the Navy

01A33393

April 30, 2004

.

Faustina Green,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A33393

Agency No. DON-03-0023A-001

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure

to state a claim and for stating the same matter that was addressed in

a previously filed EEO complaint.

In a formal complaint dated April 11, 2003, complainant claimed that

she was subjected to discrimination on the bases of race, sex, and in

reprisal for prior protected activity.

In a final decision dated April 25, 2003, the agency determined that

the instant complaint was comprised of two claims, identified in the

following fashion:

1. The agency deliberately lied about the existence of an anonymous

email and falsified information. This action triggered the issuance of

a Letter of Caution and an Unsatisfactory Performance Appraisal.

2. During a conversation with an agency EEO Counselor, complainant became

aware that an agency Executive Director made improper comments regarding

complainant's filing of a prior EEO complaint. The agency indicated

that complainant did not disclose what the Executive Director stated.

The agency dismissed claim (1) on the grounds that it addresses the same

matter raised in a prior EEO complaint. The agency dismissed claim (2)

on the grounds of untimely EEO Counselor contact, and on the alternative

grounds of failure to state a claim.<1>

Regarding claim (1), the record reflects that on April 30, 2002,

complainant filed a formal complaint (Complaint No. DON-02-0023A-001) .

Therein, complainant claimed that on October 2, 2001, she received

an unacceptable rating for the performance period of November 5,

2000-September 30, 2001, and on June 11, 2001, she was issued a Letter

of Caution. The agency dismissed these claims in a final decision dated

June 26, 2002.<2> The Commission determines that the matters raised

in claim (1) were raised in the prior EEO complaint referenced above,

and the agency's dismissal of claim (1) is AFFIRMED.

Regarding claim (2), the Commission determines that complainant had not

alleged a personal loss or harm regarding a term, condition, or privilege

of her employment. See Diaz v. Department of the Air Force, EEOC

Request No. 05931049 (April 21, 1994). The agency's dismissal of claim

(2) for failure to state a claim is AFFIRMED.

Because we affirm the dismissal of claim (2) for the reason stated herein,

we will not address alternative dismissal grounds.

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

April 30, 2004

__________________

Date

1The agency also noted that in her formal

complaint, complainant identified an additional matter as �claim (3).�

Therein, complainant claimed that the agency's actions cause her severe

emotional harm. In its final decision, the agency noted that this matter

is merely a restatement of a request for corrective action or damages,

and dismissed it for failure to state a claim. On appeal, complainant

states that �claim (3)� was not intended to be construed as a separate

claim, but was �only meant to convey damages.� Complainant indicated

that she �withdraws this allegation� and the Commission will not further

address this matter.

2The Commission affirmed the agency's dismissal of the claims regarding

the unacceptable rating and the Letter of Caution. Green v. Department

of the Navy , EEOC Appeal No. 01A23937 (June 18, 2003).