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
2
0120070653
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120070653