0120111017
05-12-2011
Teresa M. Renn, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Teresa M. Renn,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120111017
Agency No. ARWSMR10AUG03685
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 20, 2010, 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. 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 improperly dismissed pursuant to 29 C.F.R. §
1614.107(a)(1) for failure to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Police Officer at the Agency’s Directorate of Emergency Services
(DES), Police/Provost Marshall Division at the White Sands Missile
Range in New Mexico. On September 23, 2010, Complainant filed a formal
complaint alleging that the Agency subjected her to discrimination on
the bases of race (Hispanic), sex (female), disability, and in reprisal
for prior protected EEO activity when:
1. On July 2, 2010, Complainant was denied required training for her
Drug Abuse Resistance Education certification by the Assistant Chief of
Police; and
2. On June 30, 2010 Complainant became aware that she had not been
selected for the Supervisory Police Officer position under Vacancy
Announcement No. WTBW09846087, by the Police Chief.
On October 20, 2010, the Agency issued a final decision dismissing the
complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state
a claim. The Agency determined that Complainant willingly applied for
and accepted a Human Resources Assistant position in the Civilian Human
Resources Agency on August 15, 2010. Since Complainant was no longer
employed at DES, the Agency reasoned that she no longer was required to
attend any training for DES. Further, the Agency concluded that because
Complainant works in the Civilian Human Resources Agency Office, she has
access to the policies and procedures explaining the selection process.
The Agency noted that during the EEO process, Complainant was asked if she
wished to return to DES and Complainant stated that she did not. As a
result, the Agency determined that Complainant’s complaint was moot.
Accordingly, the Agency dismissed the complaint for failure to state
a claim.
Complainant submitted no arguments in support of the instant appeal.
The Agency requests that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
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. Upon review, the Commission determines that
the instant formal complaint was improperly dismissed for failure 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. Dep't of the Air Force, EEOC Request
No. 05931049 (Apr. 21, 1994).
Applying this regulation, the Commission finds that Complainant’s
complaint states a claim. Complainant alleges that she was denied
training and was not selected for a Supervisory Police Officer position.
Complainant has shown an injury or harm to a term, condition, or privilege
of employment for which there is a remedy. As a result, the Agency's
dismissal for failure to state a claim was improper.
CONCLUSION
Accordingly, the Agency’s final decision dismissing Complainant’s
complaint is REVERSED. The complaint is hereby REMANDED to the Agency for
further processing in accordance with this decision and the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance
with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the
Complainant that it has received the remanded claims within thirty (30)
calendar days of the date this decision becomes final. The Agency shall
issue to Complainant a copy of the investigative file and also shall
notify Complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the Complainant
requests a final decision without a hearing, the Agency shall issue a
final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File A Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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
May 12, 2011
Date
2
0120111017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111017