0120083368
12-31-2008
Teddy A. Perez, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Teddy A. Perez,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120083368
Agency No. FY0861755
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dismissing his 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to
state a claim. In a complaint dated April 24, 2008, complainant alleged
that he was subjected to discrimination on the bases of race (Chamorro),
color (brown) and disability (50% PTSD) when:
1. He was not promoted to the position of Safety and Occupational Health
Specialist Manager, pursuant to vacancy announcement number DON0018-0S;
and
2. He was working under and appraised against an outdated and inaccurate
position description.
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).
The Commission finds that the complaint fails to state a claim
in accordance with 29 C.F.R. � 1614.107(a)(1) because complainant
failed to show that he suffered harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). Specifically, with respect to the non-selection,
complainant alleges that the position was advertised only after he
announced his retirement and when he was out on extended sick leave.
The record indicates that the position was initially advertised on March
14, 2007 under an "open continuous" process. The job was re-announced
on May 18, 2008 in an effort to give complainant the chance to apply for
the position while he was on sick leave. However, the record indicates
and complainant admits that he never applied for or submitted a resume
for the position. In that regard, we find that complainant has failed
to demonstrate that he suffered harm with respect to a term, privilege
or condition of his employment by the agency's action.
Similarly, in claim 2, complainant has failed to demonstrate how he was
harmed by the position description he alleges was inaccurate and outdated.
Complainant fails to provide evidence indicating that he was entitled to a
higher pay scale or that he performed duties for which more compensation
was required. He fails to show that he suffered harm to a specific term
or condition of his employment.
Accordingly, the agency's final decision dismissing complainant's
complaint for failure to state a claim in accordance with EEOC Regulation
29 C.F.R. � 1614.107(a)(1) is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 31, 2008
__________________
Date
2
0120083368
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013