Carolynn T. Stearns, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 15, 2009
0120083630 (E.E.O.C. Jan. 15, 2009)

0120083630

01-15-2009

Carolynn T. Stearns, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Carolynn T. Stearns,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120083630

Agency No. 4E970003808

DECISION

Complainant filed a timely appeal with this Commission from the

agency's decision dated July 14, 2008, 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. 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

9, 2008, complainant alleged that she was subjected to discrimination

on the bases of national origin (Hispanic), sex (female), age (46),

and reprisal for her husband's prior protected EEO activity under Title

VII when she was not selected for a nursing position.

The record reflects that complainant had applied for a nursing position

with the agency's contractor. While complainant asserted that she

genuinely thought that she had applied as an applicant for a federal job,

the record does not support her contention.

Before the Commission or the agency can consider whether the agency has

discriminated against complainant in violation of Title VII, it first

must determine whether complainant is an agency employee or applicant

for employment within the meaning of Section 717(a) of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e-16(a).

Section 717(a) provides in relevant part that "[a]ll personnel actions

affecting employees or applicants for employment . . . in executive

agencies . . . shall be made free from any discrimination based on race,

color, religion, sex, or national origin." Thus, Section 717(a) expressly

prohibits discrimination by federal agencies against "employees" and

"applicants for employment." Section 717(a) does not expressly prohibit

discrimination by federal agencies against independent contractors.

Therefore, complainant is protected from discrimination by the agency

by Title VII only if s/he may be deemed an employee of the agency or

applicant for employment with the agency.

Further, 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 finds that the complaint fails to state a claim under

the EEOC regulations because complainant failed to show that she

was an employee or applicant for federal employment with the agency.

See Diaz v. Department of the Air Force, EEOC Request No. 05931049

(April 21, 1994). Accordingly, the agency's final decision dismissing

complainant's complaint 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

January 15, 2009

__________________

Date

2

0120083630

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

3

0120083630