01980998
02-03-1999
Marcia H. Gay, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Marcia H. Gay v. Department of the Navy
01980998
February 3, 1999
Marcia H. Gay, )
Appellant, )
)
v. ) Appeal No. 01980998
) Agency No. 97-68689-005
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
On November 12, 1997, Marcia H. Gay (hereinafter referred to as appellant)
filed a timely appeal from the October 8, 1997, final decision of the
Department of the Navy (hereinafter referred to as the agency) 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.
Appellant received the final agency decision on October 17, 1997.
Accordingly, the appeal is timely filed (see 29 C.F.R. �1614.402(a))
and is accepted in accordance with EEOC Order No. 960, as amended.
For the reasons that follow, the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the agency properly
dismissed one allegation in her complaint for failure to state a claim.
Appellant filed a formal complaint on August 20, 1997, alleging
discrimination based on race/color (black) and reprisal with regard to:
(a) a desk audit in April 1997 that failed to indicate an upgrade of
her position; and
(b) discussions with her new supervisor (S1) concerning her performance
before and after S1 assumed the supervisory position.
In its final agency decision (FAD), the agency accepted Issue (a),
and it dismissed Issue (b), finding that it failed to allege an agency
action that impacted a term, condition or privilege of employment.
At the time of the events herein, appellant was employed as a Personnel
Assistant, GS-8. Appellant states that S1 held discussions with her
concerning her performance and work behavior both prior to officially
becoming her supervisor on June 22, 1997 and afterwards. Appellant
acknowledges, however, that she was aware that S1 was acting in the
position prior to the official selection. Appellant seeks compensatory
damages and a change in her position.<1>
The agency argues that appellant was not an aggrieved employee, since
the agency did not take any concrete action against her, i.e., this
was not a written annual performance appraisal. Further, the agency
asserts that appellant's claim for compensatory damages does not turn
her complaint into a "processable claim."
EEOC regulations provide that an agency shall accept a complaint from
an 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 and 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 the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may
dismiss a complaint that fails to state a claim within the meaning of
29 C.F.R. �1614.103. In the case at hand, the Commission agrees with
the agency that appellant did not allege a personal harm nor is there
evidence that she suffered any personal loss or harm as a result of S1's
discussions with her. Merely because appellant found the discussions
unpleasant does not render her aggrieved under our regulations. Finally,
the Commission has held that, when an allegation fails to show that a
complainant is aggrieved, it will not be converted into an actionable
claim merely because the complainant has requested compensatory damages.
Girard v. Department of the Treasury, EEOC Request No. 05940379 (September
9, 1994). Therefore, we find that appellant is not an aggrieved employee
with regard to the action complained of herein. Accordingly, the agency's
decision to dismiss appellant's complaint for failure to state a claim
was proper pursuant to 29 C.F.R. �1614.107(a) and is AFFIRMED.
CONCLUSION
Accordingly, the agency's decision 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. �l6l4.604(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:
February 3, 1999
DATE Ronnie Blumenthal, Director
1Appellant also states that she raised a third issue that was ignored by
the agency, specifically, with regard to a position held by a
"handicapped White person." It appears that this matter was not
discussed in counseling, although raised in the complaint. If appellant
desires to pursue this issue, she should contact an EEO counselor.