0120071415
10-03-2007
Gayl M. Suits, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Gayl M. Suits,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120071415
Agency No. 2003-0916-2006100028
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision (FAD) dated July 12, 2006, dismissing her 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. Complainant alleged that she
was subjected to discrimination based on reprisal for prior protected EEO
activity under Title VII and the Rehabilitation Act when on or around
October 4, 2005, she missed an opportunity for advancement when the
Assistant Director's position was not announced, but an individual was
reassigned to the GS-12 position. According to the counselor's report,
complainant indicated the agency gave notice the reassignment was given
to someone who was already a GS-12.
The FAD dismissed the claim for failure 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).
The FAD reasoned that complainant acknowledged that she did not qualify
for the Assistant Director, GS-12 position. Complainant is a GS-9.
Complainant averred that had her position been upgraded to a GS-11 around
October 2002, and/or if in October/November 2004 a GS-11 position was not
eliminated, she would have been able to qualify for the GS-12 opportunity.
As remedy, she wishes to be promoted to GS-12.
The claim in the instant complaint does not include the events of
around October 2002 and October/November 2004. Given complainant's
acknowledgment that she does not qualify for the Assistant Director,
GS-12 position, we find that she was not harmed by the agency's action
regarding this job.
The Commission has a policy of considering reprisal claims with
a broad view of coverage. See Carroll v. Department of the Army,
EEOC Request No. 05970939 (April 4, 2000). Under Commission policy,
claimed retaliatory actions which can be challenged are not restricted
to those which affect a term or condition of employment. Rather,
a complainant is protected from any discrimination that is reasonably
likely to deter protected activity. See EEOC Compliance Manual Section 8,
"Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll,
supra. The agency's action would not likely deter protected activity.
Accordingly, the FAD is 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 3, 2007
__________________
Date
2
0120071415
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120071415