Michael J. Smith, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 27, 2007
0120070653 (E.E.O.C. Feb. 27, 2007)

0120070653

02-27-2007

Michael J. Smith, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.


Michael J. Smith,

Complainant,

v.

Dr. Donald C. Winter,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120070653

Agency No. DON 06-61076-01792

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated October 2, 2006, dismissing 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 Commission

accepts the appeal in accordance with 29 C.F.R. � 1614.405.

On August 3, 2006, complainant initiated contact with an agency EEO

office, claiming he was subjected to discrimination when:

on July 31, 2006, he was not considered or selected for the position

of Management & Program Analyst, GS-343-13, located in the Business

Management Office at Yokosuka Naval Base, Japan.

Informal efforts to resolve complainant's concerns were unsuccessful.

On September 13, 2006, complainant filed the instant formal complaint.

Therein, complainant claimed that he was the victim of unlawful employment

discrimination in reprisal for prior protected activity.

On October 2, 2006, the agency issued a final decision. The agency

dismissed the instant complaint on the grounds of mootness. Specifically,

the agency determined that on May 11, 2006, complainant received an

inquiry regarding whether he remained interested in the subject position,

and that complainant responded in the affirmative. The agency stated,

however, that on August 31, 2006, and again on September 1, 2006,

complainant stated that he did not wish to be considered for the subject

position, but that complainant instead requested "constructive feedback"

in an attempt to secure resolution of the matter. The agency determined

that because complainant did not want to be placed in the position, as

evidenced by his responses of August 31, 2006, and September 1, 2006,

"no remedy is available to which you are entitled thus rendering your

claim moot . . . ."

The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for

the dismissal of a complaint when the issues raised therein are moot.

To determine whether the issues raised in complainant's complaint are

moot, the factfinder must ascertain whether (1) it can be said with

assurance that there is no reasonable expectation that the alleged

violation will recur; and (2) interim relief or events have completely

and irrevocably eradicated the effects of the alleged discrimination.

See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo

v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).

When such circumstances exist, no relief is available and no need for

a determination of the rights of the parties is presented.

As an initial matter, we find that the complaint is more properly analyzed

for failure to state a claim. The regulation set forth at 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).

Complainant contends that he was neither considered nor selected for the

Management and Program Analyst position. However, the record indicates

that, a group of four candidates were referred to the selecting official,

but that no interviews were conducted and that no selections were made.

In the EEO Counselor's Report, the selecting official reiterated that

no selection had been made. The selecting official stated further that

it was unclear as to whether the selection could be made because the

certificate of candidates was over 90 days old. Where no selection is

made claims of non-selection ordinarily fail to state a claim. See Lander

v. Department of the Treasury, EEOC Appeal No. 01975681 (April l7, 1998).

Therefore, we find that no selection was made for the relevant position,

and complainant was not rendered "aggrieved."

Accordingly, the agency's decision to dismiss the complaint was proper

and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 27, 2007

__________________

Date

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0120070653

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120070653