01A13961_r
12-18-2001
Seneca K. Gunter, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Seneca K. Gunter v. Department of the Navy
01A13961
December 18, 2001
.
Seneca K. Gunter,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A13961
Agency No. DON-01-57095-064
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated May 31, 2001, dismissing her complaint claiming unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The Commission
accepts the appeal in accordance with 29 C.F.R. � 1614.405.
In her complaint, complainant claims that the agency discriminated against
her on the basis of race (black) when she was not hired for the summer
position of Beach Rental Attendant (position). Complainant contends
that she was interviewed for the position at a March 2001 job fair,
and that the agency's interviewer made racially derogatory remarks
and otherwise tried to discourage her from applying for the position.
Complainant avers that in contrast, the interviewer very cordially treated
a white applicant, who is complainant's friend; and that the friend was
hired on the spot.
In its final decision, the agency dismissed the complaint for failure
to state a claim, finding that complainant was not �aggrieved� by her
non-selection for the position. Specifically, the agency determined that
several Beach Rental Attendant position vacancies were being filled,
and that complainant filed her complaint while vacancies remained
opened and her application was under consideration. Alternatively,
the agency determined that complainant would be unable to establish a
prima facie case of discrimination regarding her claim, and that the
Civil Rules of Federal Procedure permit dismissal of a complaint under
these circumstances.
On appeal, complainant argues that she was harmed when subjected to
the interviewer's purported racially derogatory remarks and attempts to
discourage her from applying, and the agency's failure to hire her on
the spot. In response, the agency argues that complainant had no standing
to bring the instant complaint because she had no valid driver's license
at the time of her interview and therefore was unqualified. The agency
additionally contends that complainant's application was retained after
the job fair for further consideration once she obtained her driver's
license, which would be prior to commencement of the position on May 30,
2001, but that complainant withdrew her application when a follow-up
contact was made by the agency. The agency avers that the instant
complaint is premature and moot, and that complainant lacks standing
and cannot establish a prima facie case of discrimination, and that its
dismissal for failure to state a claim should be upheld.
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, disabling condition, or in reprisal for prior
EEO activity. 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, we find that the agency improperly addressed the merits of the
claim without the benefit of an investigation. The reasons proffered
by the agency not to hire complainant �on the spot� or subsequent to the
job fair, as set forth above, are irrelevant to the procedural issue of
whether she states a cognizable claim for which relief can be granted.
In this regard, notwithstanding the agency's contentions to the contrary,
we find no evidence to show that complainant withdrew her application,
or that the agency at anytime offered complainant the position at
issue. As such, we find that complainant identifies a cognizable harm
(non-selection for the position both on the spot as well as during the
hiring period subsequent to the job fair) on grounds (race) protected by
this Commission. Moreover, regarding the agency's alternative grounds of
dismissal, we advise the agency that the Commission's regulations do not
provide for administrative dismissal of complaints upon a determination
that a prima facie case of discrimination cannot be established, and the
instant complaint cannot be dismissed for this reason. See Ferrazzoli
v. USPS, EEOC Request No. 05910642 (August 15, 1991).
Accordingly, we find that the agency improperly dismissed the
instant complaint for failure to state a claim, and we REVERSE this
determination, and REMAND the case to the agency for further processing
as set forth in the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
December 18, 2001
__________________
Date