01984336
02-04-2000
Janice M. Allen, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency) Agency.
Janice M. Allen v. Department of Defense
01984336
February 4, 2000
Janice M. Allen, )
Complainant, )
)
v. )
) Appeal No. 01984336
William S. Cohen, ) Agency No. XL-98-049
Secretary, )
Department of Defense, )
(Defense Logistics Agency) )
Agency. )
____________________________________)
DECISION
On May 15, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) regarding a 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.<1> The Commission
accepts the appeal in accordance with EEOC Order No. 960, as amended.
Complainant contacted the EEO office claiming that she was subjected
to discrimination based on reprisal when her right to be informed of
changes to her position was not respected. Informal efforts to resolve
complainant's concerns were unsuccessful. Accordingly, on April 20,
1998, complainant filed a formal complaint.
The agency framed complainant's claim as follows:
On March 24, 1998, complainant became aware that various Standard Form
50-B's (Notice of Personnel Action) had been processed regarding her
position at DCMC Michoud-Stennis, and about which she had not been
previously informed.
The agency issued a FAD, dated May 7, 1998, dismissing the complaint for
failure to state a claim. Specifically, the agency stated that "[t]he
fact that [complainant] became aware of the processing of certain SF
50-B forms, several of which correspond to actions which [complainant]
has already complained of, does not cause [complainant] a personal harm
or loss." According to the FAD, because the complaint does not indicate
that complainant suffered a harm or loss with respect to a term, condition
or privilege of her employment, it therefore fails to state a claim.
On appeal, complainant contends that the alleged actions were taken to
"create an adverse situation." Complainant argues that the processing of
the SF 50-B forms without her knowledge has "caused a change of conditions
in [her] work duties and supervision...", which has affected her mentally.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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
22, 1994).
The record reflects that complainant believes she was discriminated
against when her "right to be informed of changes to [her] position was
not respected" by two agency officials. The Commission finds that
complainant has failed to describe how the alleged action resulted
in a harm or loss regarding the term, conditions, or privileges of
her employment. We do not find that the alleged failure to inform
complainant, renders her an "aggrieved" employee. Accordingly, the
agency's decision dismissing the complaint for failure to state a claim
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 4, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.