01991754
11-16-1999
Phillip S. Osborne, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Phillip S. Osborne v. Department of Transportation
01991754
November 16, 1999
Phillip S. Osborne, )
Complainant, )
)
v. ) Appeal No. 01991754
) Agency No. 3-99-3004
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
On December 28, 1998, complainant filed a timely appeal of a December 2,
1998 final agency decision, which was received by him on December 8,
1998, dismissing his complaint for failure to state a claim.<1>
In its final decision, the agency identified the claim of complainant's
September 25, 1998 complaint as whether complainant was discriminated
against when he was not selected for an Air Traffic Controller position
(FG-2152-12) under MPP Announcement: ASO-AAT-98-A161-29272. The agency
stated that complainant was not harmed since the subject announcement
was canceled on August 6, 1998, and the vacancy did not materialize.
64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.107(a)(1)) provides that prior to a request
for a hearing in a case, the agency shall dismiss an entire complaint that
fails to state a claim pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. �1614.103).
In order to establish standing initially under 29 C.F.R. �1614.103, a
complainant must be either an employee or an applicant for employment
of the agency against which the claims of discrimination are raised.
In addition, the claims must concern an employment policy or practice
which affects the individual in his/her capacity as an employee or
applicant for employment. The agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he/she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age, or disability. 29 C.F.R. ��1614.103
and .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 complaint involved complainant's nonselection to the Air Traffic
Controller position at issue. The record indicates that complainant
applied for the position on May 27, 1998, but the subject vacancy
announcement was subsequently canceled on August 6, 1998. Although
complainant indicated that an Air Traffic Manager allegedly made a remark
that his chances of getting selected to that position were about nil,
we find that the subject remark in and of itself does not constitute
an actionable claim. See Henry v. United States Postal Service, EEOC
Request No. 05940695 (February 9, 1995). Since the vacancy announcement
at issue was canceled and no selection was made under that announcement,
we find that the complaint failed to state a claim. Accordingly, the
agency's final decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
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:
November 16, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
_________________________
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.