01A22914_r
09-10-2002
Lee A. Black, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Lee A. Black v. Department of Transportation
01A22914
September 10, 2002
.
Lee A. Black,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A22914
Agency No. 3-02-3024
DECISION
Complainant filed an appeal with this Commission from an agency decision,
issued on March 28, 2002, dismissing his 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. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office regarding claims of discrimination
based on race, sex, age, disability, and reprisal. Informal efforts
to resolve complainant's concerns were unsuccessful. Subsequently,
complainant filed a formal complaint. The agency, in its decision,
framed the claims as follows:
Complainant was not selected for a Civil Rights Specialist position with
FHWA, advertised under vacancy announcement number HF0265TL. Complainant
alleges that the agency cancelled the vacancy announcement rather than
select him. Complainant also alleges that he was not selected for an
Equal Opportunity Specialist position (GS-360-13), Eastern Resource
Center, Baltimore, MD which was advertised under vacancy announcement
number AF1108ER.
On March 28, 2002, the agency issued a decision dismissing the complaint
for failure to state a claim. The agency noted that announcement HF0265TL
was opened on October 2, 2000, closed on October 23, 2000, and was later
cancelled. According to the agency, following a change in management,
the announcement was revised and the job was re-posted. The agency
maintains, however, that complainant did not apply for the position
under the new posting. Announcement AF1108ER opened October 23, 2000
and closed November 14, 2000. Agency records indicated that complainant
did not apply for the position. Therefore, because complainant did not
apply for either position, the agency concluded that complainant failed
to state a claim.
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).
Here, complainant contends that he was discriminated against when he
was not selected for two positions. However, we note that he does
not challenge the agency's contention that he failed to apply to the
re-posting that followed the cancellation of announcement HF0265TL,
nor does he dispute the agency's determination that he never applied
to announcement AF1108ER. Therefore, because complainant did not
submit applications to the two positions, we agree with the agency that
complainant does not state a claim. Based on a review of the record,
we do not find that complainant was rendered an "aggrieved" employee,
when he was not selected for positions that he did not apply to.
Accordingly, the agency's decision to dismiss the complaint 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
September 10, 2002
__________________
Date