01A04457
02-26-2001
Cynthia J. Bruce, Complainant, v. Thurman M. Davis, Sr., Acting Administrator, General Services Administration, Agency.
Cynthia J. Bruce v. General Services Administration
01A04457
February 26, 2001
.
Cynthia J. Bruce,
Complainant,
v.
Thurman M. Davis, Sr.,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 01A04457
Agency No. 00R7PBSCJB11
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated April 18, 2000, dismissing her complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
In her complaint, complainant alleged that she was subjected to
discrimination on the basis of age (39) when:
She was not selected for a GS-12 position as a Real Property Management
Specialist pursuant to Vacancy Announcement No. 9971531.
The agency dismissed the complaint pursuant to EEOC Regulation 29
C.F.R. � 1614.107(a)(1), for failure to state a claim. The agency found
that because the selection for the vacant position was made before
complainant turned 40 years of age, she was not protected by the ADEA.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that an agency may
dismiss a complaint which fails to state a claim pursuant to 29 C.F.R. �
1614.103. For employees and applicants for employment, EEOC Regulation
29 C.F.R. � 1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when
the aggrieved individual is at least 40 years of age), and the
Rehabilitation Act (discrimination on the basis of disability) shall be
processed in accordance with Part 29 C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether a claim is
within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether she has alleged employment discrimination
covered by the EEO statues. 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. See Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994).
Complainant claims that she was discriminated against on the basis
of age when she was not selected to a GS-12 position. We find that
complainant has failed to state a claim with regard to age discrimination.
Complainant is not within the protected group because she was only 39
years of age when the selection at issue was made. The agency's dismissal
of the complaint for failure to state a claim was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 26, 2001
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.