0120100595
04-30-2010
Tiffany C. Owens, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Tiffany C. Owens,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120100595
Agency No. ARGORDAN09AUG03122
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 13, 2009, 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
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race (Black) and age (DOB: February 8,
1983) when, in July 2009, complainant was informed that her name was
removed from a list of candidates for a conversion from a contract
employee to an employee of the agency.
The record indicated that complainant was a Certified Nurse Assistant
(CNA) working at the agency's Family Care Clinic at the Eisenhower Army
Medical Center in Fort Gordon, Georgia. Complainant was employed by
CNA as a contractor. Complainant was informed in May 2009 that there
were nine CNA positions that were to be converted to GS positions for
direct employment by the agency. Complainant was initially considered
for one of those GS positions, but her name was later removed from
consideration. Complainant was informed of the decision in July 2009.
Complainant contacted the EEO office and, when the matter was not resolved
informally, she filed a formal complaint alleging discrimination.
The agency dismissed the complaint based on its determination that
complainant was not an "employee" for purposes of this complaint.
As such, the agency informed complainant that she could proceed with
the matter at the EEOC's Atlanta District Office. Complainant filed
an appeal with the EEOC's Office of Federal Operations.
The agency failed to expressly indicate the regulation on which it
based its dismissal. However, because it based its dismissal on its
determination that complainant had no standing to file a complainant
because she was a contractor, we find that the dismissal was implicitly
based on 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
We, however, disagree with the agency's characterization of complainant's
status as it relates to her complaint. The record indicates that the
agency had nine vacant positions which were announced for selection.
These positions were to be filled either by outside applicants or
contract CNA positions which would be converted to GS direct employment
positions with the agency. Complainant was considered for one of the
nine positions and, as such, she was an applicant for agency employment.
As an applicant for federal employment, complainant clearly had standing
to file a complaint within the 29 C.F.R. Part 1614 complaint process.
Accordingly, the Commission REVERSES the final decision's dismissal of
the complaint on the basis of race1 and REMANDS the matter for further
processing in accordance with the ORDER below.
ORDER (E0408)
The agency is ordered to process the remanded claim of discrimination on
the basis of race in accordance with 29 C.F.R. � 1614.108. 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 (K1208)
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 (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 (R0408)
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 (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
April 30, 2010
_________________
Date
1 Complainant also alleged discrimination in violation of the
ADEA. However, complainant was 26 years old at the time of the alleged
discrimination. The ADEA only applies to those over the age of forty (40).
Accordingly, we dismiss the basis of age from the remanded complaint.
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0120100595
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2 0120100595