0120073223
10-04-2007
Patricia D. Young, Complainant, v. Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.
Patricia D. Young,
Complainant,
v.
Michael O Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120073223
Agency No. HHS-NIH-0061-2007
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision (FAD) dated June 4, 2007, dismissing her complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant alleged that she was subjected to discrimination based on race
(black), disability (back), and age (born in 1952) when:
1. on September 25, 2006, she was informed that her position (IT
Specialist) was under an OMB Circular A-76 Study,
2. on October 30 and 31, 2006, two vacancies within the division were
filled and she was not given the opportunity to transfer or lateral into
those other positions to protect her from OMB Circular A-76 Study,
3. on October 30 and 31, 2006, the vacancy (IT Specialist, GS-2210,
CSR-07-166265-MP), which she applied for was not filled because it came
under OMB Circular A-76 Study.
The FAD dismissed the complaint for failure to state a claim because
complainant was not harmed. Complainant indicated in her complaint that
the OMB Circular A-76 Study regarded whether to subject her position to
competitive bidding for contracting out. 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).
In dismissing claim 1, the FAD reasoned complainant was not aggrieved by
her position being placed under a study. In support of this, it cited
Tence v. Department of Agriculture, EEOC Request No. 05930993 (May 5,
1994) (position being placed on a surplus excess list does not state
a claim as there is no harm. The listing is not a decision to take an
adverse action, like a reduction-in-force). We agree claim 1 fails to
state a claim.
Regarding claim 2, the FAD found complainant was not harmed because she
did not apply for the positions. On appeal, complainant explains that
she did not apply because the positions were restructured and downgraded
below her grade level. As complainant was not interested in and did not
apply for the positions as downgraded, she was not harmed by this matter.
See Davis v. General Services Administration, EEOC Appeal No. 01A62953
(August 16, 2006). We agree claim 2 fails to state a claim.
Regarding claim 3, the FAD found complainant was not harmed since the
position was not filled because it became part of the OMB circular A-76
Study and there was a pending reduction-in-force. In effect, the vacancy
announcement was cancelled. Given this circumstance, we agree that
claim three fails to state a claim. Generally, when an agency cancels a
vacancy announcement without making a selection, the complainant suffers
no personal harm that would render him "aggrieved". Van Nest v. Department
of the Army, EEOC Request No. 05960752 (November 20, 1998).
Accordingly, the FAD's dismissal of complainant's complaint 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
October 4, 2007
__________________
Date
2
0120073223
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120073223