01981752
02-04-1999
Mavourneen Mangan, Appellant, v. Togo D. West, Jr., Secretary, Department of Veteran's Affairs,) Agency.
Mavourneen Mangan v. Department of Veteran's Affairs
01981752
February 4, 1999
Mavourneen Mangan, )
Appellant, )
)
v. ) Appeal No. 01981752
)
Togo D. West, Jr., )
Secretary, )
Department of Veteran's Affairs,)
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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. The final agency decision was received by
appellant on December 23, 1997. The appeal was postmarked December 24,
1997. 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 a portion
of appellant's complaint for failure to state a claim.
BACKGROUND
Appellant contacted an EEO counselor on March 18, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that
she was discriminated against when:
(1) in January 1997 a subordinate of appellant's was selected for the
position of Gerontological Nurse Practitioner while being interviewed
as a witness in a prior EEO complaint filed by appellant;
(2) in February 1997 she was not supplied with requested personnel
policies on applying for positions within the medical center;
(3) on February 20, 1997 she was denied involvement in the transition
process of the transfer of the Nurse Practitioner in Diabetes Education
to the position of Gerontological Nurse Practitioner;
(4) in February 1997 the usual procedures for employee transfer,
transitional periods, and the filling of vacancies were not followed
in selecting appellant's subordinate employee for Gerontological Nurse
Practitioner;
(5) on February 18, 1997 she had to submit a request to fill the Nurse
Practitioner, Diabetes Education position to the resource committee,
while no such submission was required for the Gerontological Nurse
Practitioner position;
(6) in March 1997 agency officials influenced the resource committee
to deny the replacement request for the position of Nurse Practitioner,
Diabetes Education; and
(7) beginning in February 1997 and continuing to the present, actions of
agency officials violated medical center policies and created a hostile
work environment.
Informal efforts to resolve appellant's concerns were unsuccessful.
Accordingly, on April 11, 1997, appellant filed a formal complaint
alleging that she was the victim of unlawful employment discrimination
on the basis of reprisal (prior EEO activity).
On December 19, 1997, the agency issued a final decision accepting for
investigation allegations (2) through (7) of appellant's complaint but
dismissing allegation (1) for failure to state a claim. Specifically,
the agency determined appellant failed to demonstrate that she was an
aggrieved employee with respect to allegation (1).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) states that the agency shall
dismiss a complaint or a portion thereof, which fails to state a claim
under 29 C.F.R. �1614.103 or 29 C.F.R. �1614.106(a). 29 C.F.R. �1614.103
provides that individual and class complaints of employment discrimination
and retaliation 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 processed in accordance with Part 1614 of the
EEOC Regulations. To establish standing as an "aggrieved employee"
within the context of 29 C.F.R. �1614.103, appellant must allege that
she has been injured in fact. See Hackett v. McGuire Bros., 445 F.2d
447 3rd Cir. 1971).
Upon review of the record herein, we find that the agency's decision
dismissing allegation (1) of appellant's complaint was proper. The
Commission determines that appellant failed to show that she had been
harmed with respect to a term, condition or privilege of employment.
See Riden v. Department of the Treasury, EEOC Request No. 05970314
(March 2, 1990). Here the alleged conduct of the agency involved another
employee and did not result in any concrete action against appellant.
Further, allegation (1) appears to concern an event that has not occurred.
The Commission is not persuaded by appellant's contentions on appeal that
the agency's action of interviewing appellant's subordinate for a position
"would have had a chilling effect on her testimony" in appellant's pending
EEO case. Accordingly, we find that with respect to allegation (1),
appellant failed to establish herself as an aggrieved employee within
the meaning of EEOC Regulations.
CONCLUSION
Accordingly, the agency's decision dismissing a portion of appellant's
complaint for failure to state a claim is hereby 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:
February 4, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations