01982082_r
06-10-1999
Janice M. Allen, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Janice M. Allen, )
Appellant, )
)
v. ) Appeal No. 01982082
William S. Cohen, ) Agency No. XL98018
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
______________________________)
DECISION
On January 21, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated January 5, 1998, received
by appellant on January 10, 1998, pertaining to 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 Commission accepts
the appellant's appeal in accordance with EEOC Order No. 960, as amended.
In the complaint, appellant alleged that she was discriminated against
in reprisal for prior EEO activity when:
1. On September 2, 1997, the Commander, DCMC Michoud-Stennis, requested
volunteers to fill a GS-1102-11 vacancy in the Technical Assessment
Group;
2. On September 5, 1997, appellant volunteered and was selected for
the vacancy position in the Technical Assessment Group; and
3. On or about October 24, 1997, appellant became aware that the
Commander, DCMC Michoud-Stennis, had issued a new organization chart
on October 1, 1997, which listed her as "Detailed to an unestablished
position" in the Technical Assessment Group.
The agency dismissed allegations 1 and 2 for untimely EEO contact and
allegations 1, 2, and 3 for failure to state a claim from which relief
can be granted.
On appeal, the appellant contends that Commander J. Mullally is constantly
trying to ruin her federal career and that she was not
made aware of the alleged discriminatory action until October 24, 1997,
via her new supervisor, Herb Hostler.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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).
With regard to allegations 1-3, appellant failed to identify an injury
to a term, condition, or privilege of her employment. The request for
volunteers for a vacancy, appellant's selection for that vacancy, and the
subsequent designation on the organization chart of appellant as being on
detail to an unestablished position do not appear to be adverse actions
for which there is any remedial relief available. Indeed, appellant
herself concedes on appeal that she has "not suffered a personal loss or
harm with respect to a term, condition or privilege of employment . . ."
Therefore, we find that appellant's allegations were properly dismissed
for failure to state a claim.<1>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
June 10, 1999
____________________________
DATE Carlton M. Hadden, Director
1Since we are affirming the agency's dismissal of appellant's
complaint on the grounds of failure to state a claim, we need
not address the agency's alternative grounds for dismissal of
allegations 1 and 2.