,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 19, 2019

2019003843 (E.E.O.C. Sep. 19, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 2019003843

Agency No. 19-67400-01974

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated May 8, 2019, dismissing a formal
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 Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Financial Technician, 0503, GS-6 at the
Agency’s Marine Corps Installations Pacific MCB Camp Butler in Okinawa, Japan.

On April 8, 2019, Complainant filed a formal complaint claiming that the Agency discriminated
against her based on national origin, sex, and disability when, on February 7, 2019, a Human
Resources Specialist withheld and failed to deliver Complainant’s SF-50 due to termination in a
timely and reasonable manner.

On May 8, 2019, the Agency issued a final decision. The Agency dismissed the formal complaint
for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), finding that record failed to
demonstrate that Complainant was aggrieved.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2019003843

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The instant appeal followed. On appeal, Complainant argues, through her representative, that
she was terminated from her position without due process and Complainant disagrees with the
Agency’s reasons for her termination. Complainant further requests that her SF-50 be “updated”
to remove “the untrue and negative remarks of misconduct” so that she “can compete for a
federal job opening someday.”

ANALYSIS AND FINDINGS

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. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).

Our review of the formal complaint and EEO Counselor’s report support that Complainant
claims that the HR specialist failed to deliver her SF-50 indicating her termination from the
Agency in a reasonable time and manner which delayed her ability to dispute her termination in a
timely manner. Here, there is nothing in the record supporting a claim that Complainant was
adversely affected by receiving her SF-50 in an untimely manner. Complainant’s ability to
dispute her termination was not contingent upon her receipt of the SF-50. Nor did the SF-50
contain additional information Complainant would have received regarding her termination when
she left the Agency. Thus, there is no indication that Complainant suffered a present harm or loss
with respect to a term, condition, or privilege of employment for which there is a remedy.

The Agency’s final decision dismissing the formal complaint for the reasons discussed above is
AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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.
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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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests.
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Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 19, 2019
Date