01982702
02-24-1999
Ivar J. Queen, Appellant, v. Carol M. Browner, Administrator, Environmental Protection Agency,) Agency.
Ivar J. Queen v. Environmental Protection Agency
01982702
February 24, 1999
Ivar J. Queen, )
Appellant, )
)
v. ) Appeal No. 01982702
) Agency No. 98-0006-HQ
Carol M. Browner, )
Administrator, )
Environmental Protection Agency,)
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of 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 final agency decision was received by
appellant on February 21, 1998. The appeal was postmarked February 26,
1998. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim.
BACKGROUND
Appellant contacted an EEO counselor on September 12,1997, regarding
allegations of discrimination. Specifically, appellant alleged that he
was discriminated against when (1) on August 28, 1997 he was harassed
by the Federal Protective Service due to allegations raised by [named
individual], a contractor working at the Environmental Protection
Agency (EPA). Informal efforts to resolve appellant's concerns were
unsuccessful. Accordingly, on October 28, 1997, appellant filed a
formal complaint alleging that he was the victim of unlawful employment
discrimination on the bases of race (black), and sex (male).
On February 19, 1998, the agency issued a final decision dismissing
appellant's complaint for failure to state a claim. Specifically, the
agency determined that appellant was neither an employee of the EPA nor an
applicant for employment with the agency, but rather was an employee of
the DC Sports Commission. As such, the agency concluded that appellant
is not entitled to protection under Part 1614 of the EEOC Regulations,
and has not stated a claim.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex, and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination
on the basis of disability) shall be possessed in accordance with Part
1614 of the EEOC Regulations. In order to establish standing under
29 C.F.R. �1614.103, a complainant must be either an employee or an
applicant for employment of the agency against which the allegations of
discrimination are raised. In addition, the Commission has followed the
finding of the Supreme Court and held that an employee is aggrieved when
some personal loss, or harm has been suffered with respect to a term,
condition, or privilege of employment. See Riden v. Department of the
Treasury, EEOC Request No. 05970314 (October 2, 1998).
Based on a thorough review of the record, the Commission finds that the
agency properly dismissed appellant's complaint for failure to state a
claim pursuant to 29 C.F.R. �1614.107(a). Here, appellant is neither
an employee nor an applicant for employment with the EPA, the agency
with which he filed his complaint. See Minnich v. MSPB, EEOC Appeal
No. 01945762 (December 19, 1994), Request for Reconsideration Denied,
EEOC Request No. 05950266 (August 31, 1995) Fontes v. MSPB, EEOC Appeal
No. 01944167 (October 31, 1994). Because appellant is not an employee,
he does not have standing to bring an EEO complaint against the agency.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint for
failure to state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a
timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Feb 24, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations