01a52495
05-20-2005
Judy K. Cranford, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.
Judy K. Cranford v. Department of Health & Human Services
01A52495
May 20, 2005
.
Judy K. Cranford,
Complainant,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A52495
Agency No. 05-010-CMS
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, dated January 21, 2005, pertaining to 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. and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. The Commission accepts the appeal in accordance
with 29 C.F.R. � 1614.405.
On November 16, 2004, complainant contacted the EEO office claiming that
she was discriminated against when:
On October 8, 2004, she learned that she was not selected for a GS-107-13,
Health Insurance Specialist position advertised under Vacancy Announcement
Number RN8-04-013R in the Centers for Medicare & Medicaid Services,
Denver Regional Office.
Informal efforts to resolve complainant's concerns were unsuccessful.
On January 11, 2005, complainant filed a formal complaint based on age
and religion.
In its January 21, 2005 final decision, the agency dismissed the instant
complaint for failure to state a claim. The agency determined that
while complainant applied for the subject position and was interviewed,
no one was selected to fill the position and the vacancy announcement was
canceled. The agency found that complainant was not rendered aggrieved
when the vacancy was cancelled.
On appeal, complainant states that the position was offered to two
other individuals who declined the position, before the announcement
was cancelled. Further, complainant contends that during her brief
interview she was not asked about her job experiences or skills.
Complainant argues that, instead, the agency questioned her about
spiritual beliefs and the date of her high school graduation.
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).
The Commission has previously found that a complaint states a claim where
a complainant claims that the agency canceled a vacancy after making
a selection and that the cancellation occurred under circumstances
suggesting a deliberate intent to avoid selecting her. See Van Nest
v. Department of the Army, EEOC Request No. 05960752 (November 20, 1998)
citing Shively v. Department of the Army, EEOC Request No. 05930361
(September 30, 1993). In the instant case, however, complainant has not
claimed that the vacancy was cancelled with the purpose of avoiding her
placement in the position. Instead, complainant addressed the agency
action in not selecting her, citing purported evidence of discriminatory
intent during her interview. The Commission agrees with the agency that
because the vacancy announcement was canceled, complainant has failed
to state a claim of discrimination.
Accordingly, the agency's decision to dismiss the instant complaint for
failure to state a claim was proper and 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
May 20, 2005
__________________
Date