01A44586_r
10-22-2004
Carol A. Brinson, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Carol A. Brinson v. Department of the Navy
01A44586
October 22, 2004
.
Carol A. Brinson,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A44586
Agency No. 04-68925-0003
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated June 4, 2004, dismissing her 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.
On December 17, 2003, complainant initiated contact with an EEO Counselor,
claiming that she was not selected for a Utility Systems Operator vacancy
for which she was interviewed in April or May 2003.
Complainant stated that she also learned that another party was appointed
to a separate position in December 2003. Complainant stated that she
felt that �this was unfair� because she was not selected for either
opening even though �she was the most qualified for the positions.� The
EEO Counselor's report indicated that complainant �became aware of the
non-selection sometime in early December 2003.�
In a �Request for Informal Complaint Counseling� form dated January 15,
2003, complainant again mentioned her non-selection for the vacancy
she interviewed for in April or May 2003. Complainant also noted that
�someone else was appointed to a position that was not advertised in
December 2003,� and that �the person hired (male) was not interviewed
and does not appear to have Veteran's Preference.�
In her February 26, 2004 formal complaint, complainant stated that she
was discriminated against on the bases of sex and in reprisal for prior
union activity of her spouse, when the �[a]ctivity hired a male for
Utility System Operator without advertising or announcement and did not
provide me the same opportunity due to the fact that I am female.�
In its June 4, 2003 final decision, the agency first stated it was
dismissing the instant complaint for failure to state a claim. The agency
found that complainant failed to show she was aggrieved �by the matter�
that she alleged, and that she �was ineligible to apply for the position
since the area of consideration for the position was limited to federal
employees only.�
The final decision then found that complainant's claims �regarding [her]
non-selection for the position in April or May 2003" were untimely raised
with an EEO Counselor, because the agency �filled the April or May [2003]
position on August 24, 2003,� and complainant �was required to file any
complaint regarding this matter within 45 days of that date.�<1>
On appeal, complainant asserts that she �was filing a complaint on the
first job not the second,� and that she �was never informed that she was
not being considered for the job in question.� Complainant also states
that [i]t was after the agency hired the second person for the job that
[complainant] applied that she thought her rights had been violated.�
In response to complainant's appeal, the agency states that at the same
time it considered applications for the position for which complainant
interviewed, the agency sought applicants for a second Utility Systems
Operator position for which complainant was not eligible because she
was not a federal employee.
Upon review of the entire record, the Commission finds that complainant's
complaint was properly dismissed. As a preliminary matter, the Commission
notes that complainant does not clearly state which of the two Utility
Systems Operator non-selections is the subject of her formal complaint.
Moreover, in its final decision, the agency has not defined the specific
matter or matters raised by complainant. Nonetheless, the Commission
determines that the agency has sufficiently identified and addressed
each of complainant's potential claims.
First, with regard to the second Utility Systems Operator non-selection
allegedly occurring in December 2003, we find that complainant has failed
to state a claim. Specifically, complainant has failed to show a harm
or loss with respect to a term, condition, or privilege of employment
connected to her non-selection for a position for which she was not
eligible.
Second, concerning her non-selection for the position for which she
interviewed �in April or May 2003," the record discloses that complainant
interviewed for the position at issue on March 31, 2003, and that the
position was filled by the agency on August 24, 2003. Complainant,
however, did not initiate contact with an EEO Counselor until December
17, 2003, which is beyond the forty-five (45) day limitation period.
Complainant contends that she did not become aware of the non-selection
until early December 2003, and that she �has never been informed that she
did or did not get the job;� however, the record indicates that she had,
or should have had a reasonable suspicion of discrimination more than
forty-five days prior to her December 17, 2003 EEO Counselor contact.
We are unpersuaded by complainant's assertion that she first learned that
she was not hired for the position in December 2003, as the record shows
that complainant's representative, who is also her husband, requested
as early as June 15, 2003, that the agency's Human Resources Advisor
provide him information �on how the selection was made� for the Utility
Systems Operator position �as there [have] been questions as to why some
people were or were not offered the job.�
Accordingly, we find that complainant's claims were properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1) and (a)(2), and the agency's
final decision is therefore 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
October 22, 2004
__________________
Date
1We note that the agency additionally dismissed complainant's basis
of reprisal, on the grounds that reprisal for the union activity of
complainant's husband was not a protected basis under Title VII.