0120131722
06-20-2013
Goldie Nwachuku, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
Goldie Nwachuku,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120131722
Agency No. HSICE220612012
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 20, 2013, 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
BACKGROUND
At the time of the events giving rise to this complaint, Complainant worked as a Senior Clinical Nurse in the Public Health Service at the Agency's Immigration and Customs Enforcement Health Services Facility in San Diego, CA. On March 13, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of race (African-American) when, on October 12, 2011, Complainant's Supervisor acted as if he did not understand her, made jokes, and made fun of her accent in front of twenty staff members while Complainant was giving a report. The Agency issued its final decision on February 20, 2013, dismissing the complaint due to the EEOC's lack of jurisdiction over this matter. Complainant now appeals this determination.
ANALYSIS AND FINDINGS
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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
A review of the record shows that Complainant is a Commissioned Officer serving in the Public Health Service. On October 13, 2000, the Commission issued a decision in Raymond v. Department of Health and Human Services, EEOC Appeal No. 01987012, holding:
The Public Health Service Act now provides that "[a]ctive service of commissioned officers of the Service shall be deemed to be active military service in the Armed Forces of the United States for purposes of all laws related to discrimination on the basis of race, color, sex, ethnicity, age, religion, and disability." 42 U.S.C. � 213(f) (Supp. 2000). The Commission's jurisdiction over complaints by federal employees does not extend to uniformed military personnel. See 29 C.F.R. � 1614.103(d)(1). Furthermore, we note that in the preamble to the revised regulations at 29 C.F.R. Part 1614, governing the EEOC's federal sector complaint process, the Commission noted the amendment by Congress to the Public Health Service Act and specifically declined to add the Public Health Service Commissioned Corps to the list of entities covered by the EEOC Regulations. See Matters of General Applicability, 64 Fed. Reg. 37,644, 37,655 (1999).
Based upon the foregoing, we find that Complainant, an employee of the Uniform Public Health Service, is not among the persons covered by the Administrative process set forth at 29 C.F.R. Part 1614. Accordingly, the Agency's final decision dismissing the complaint for failure to state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
June 20, 2013
Date
2
01-2013-1722
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131722