01993877
07-10-2000
Jeanne L. Boykins, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Jeanne L. Boykins, )
Complainant, )
)
v. ) Appeal No. 01993877
William M. Daley, ) Agency No. 97-63-0324
Secretary, )
Department of Commerce, )
Agency. )
____________________________________)
DECISION
On April 8, 1999, complainant filed an appeal with this Commission from
a final agency decision received by her on March 26, 1999, pertaining
to her 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. and Section 501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. � 791 et seq.<1> In her complaint, complainant alleged that she was
subjected to discrimination on the bases of race (Black), color (black),
and disability (unspecified condition affecting motor coordination) when:
On May 29, 1997, complainant took a test for an unemployment field
position and failed it after the Senior Representative who administered
the test did not tell her or any of the other test takers that they
needed twenty-three (23) points to pass the test.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(a)(1)), for failure to
state a claim. Specifically, the agency noted that complainant's score
on the test was fourteen (14) points. The agency stated that even if
the administrator told complainant that the minimum passing score was
twenty-three (23) points prior to her taking the test, it would not have
changed the fact that complainant failed the test. Thus, the agency
argued that complainant failed to show that she suffered a harm or loss
to a term, condition, or privilege of employment for which there is a
remedy under EEOC law.
On appeal, the agency also argued that complainant's appeal should be
dismissed as untimely. The agency claimed that complainant received
the final agency decision on February 26, 1999, but stated that she did
not file an appeal with the Commission until April 8, 1999, beyond the
applicable thirty (30) day limitation period.
After a review of the record, we find that complainant's appeal was
timely filed. The record shows that the agency decision was mailed
to complainant on February 4, 1999, but was returned to the agency on
February 26, 1999, as undeliverable. A second mailing was attempted
and the record indicates that complainant received the second mailing of
the final agency decision on March 26, 1999. Thus, complainant's appeal
which was mailed on April 8, 1999, was timely filed within thirty (30)
days of her receipt of the final agency decision.
EEOC Regulation 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 record shows that complainant applied for a Census field position
at the unemployment office along with eight or nine other applicants.
Complainant and the other applicants took a test which was administered
by the Senior Representative. According to complainant's own statement,
the same test was given to all applicants and all applicants received
the same instructions on taking the test. A minimum score of 23 was
needed to pass the test, however, complainant received a score of 14.
Furthermore, complainant stated that she was not alleging that the test
itself was discriminatory.
In the present case, we find that complainant failed to state a
cognizable claim of employment discrimination since she failed to
show that she suffered an individual or unique harm as a result
of the alleged discriminatory action. As revealed by the record,
all the applicants for employment received the same test and the same
instructions on taking the test. The U.S. Supreme Court has held that
a generalized grievance shared by all or a substantially large class of
individuals is not sufficient to establish standing. Warth v. Seldin,
422 U.S. 490 (1975); See also Brown v. Social Security Administration,
EEOC Request No. 05980875 (November 4, 1999); Crandall v. Department
of Veterans Affairs, EEOC Request No. 05970508 (September 11, 1997).
Thus, complainant has not alleged that she was treated any differently
than the other applicants for employment nor has she shown that the
agency's action resulted in any specific harm to a term, condition, or
privilege of employment. Accordingly, the agency's decision to dismiss
complainant's complaint was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 10, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.