Janice M. Allen, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency) Agency.

Equal Employment Opportunity CommissionFeb 4, 2000
01984336 (E.E.O.C. Feb. 4, 2000)

01984336

02-04-2000

Janice M. Allen, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency) Agency.


Janice M. Allen v. Department of Defense

01984336

February 4, 2000

Janice M. Allen, )

Complainant, )

)

v. )

) Appeal No. 01984336

William S. Cohen, ) Agency No. XL-98-049

Secretary, )

Department of Defense, )

(Defense Logistics Agency) )

Agency. )

____________________________________)

DECISION

On May 15, 1998, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) regarding a complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The Commission

accepts the appeal in accordance with EEOC Order No. 960, as amended.

Complainant contacted the EEO office claiming that she was subjected

to discrimination based on reprisal when her right to be informed of

changes to her position was not respected. Informal efforts to resolve

complainant's concerns were unsuccessful. Accordingly, on April 20,

1998, complainant filed a formal complaint.

The agency framed complainant's claim as follows:

On March 24, 1998, complainant became aware that various Standard Form

50-B's (Notice of Personnel Action) had been processed regarding her

position at DCMC Michoud-Stennis, and about which she had not been

previously informed.

The agency issued a FAD, dated May 7, 1998, dismissing the complaint for

failure to state a claim. Specifically, the agency stated that "[t]he

fact that [complainant] became aware of the processing of certain SF

50-B forms, several of which correspond to actions which [complainant]

has already complained of, does not cause [complainant] a personal harm

or loss." According to the FAD, because the complaint does not indicate

that complainant suffered a harm or loss with respect to a term, condition

or privilege of her employment, it therefore fails to state a claim.

On appeal, complainant contends that the alleged actions were taken to

"create an adverse situation." Complainant argues that the processing of

the SF 50-B forms without her knowledge has "caused a change of conditions

in [her] work duties and supervision...", which has affected her mentally.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 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

22, 1994).

The record reflects that complainant believes she was discriminated

against when her "right to be informed of changes to [her] position was

not respected" by two agency officials. The Commission finds that

complainant has failed to describe how the alleged action resulted

in a harm or loss regarding the term, conditions, or privileges of

her employment. We do not find that the alleged failure to inform

complainant, renders her an "aggrieved" employee. Accordingly, the

agency's decision dismissing the complaint for failure to state a claim

was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

February 4, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.