Jeanne L. Boykins, Complainant,v.William M. Daley, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionJul 10, 2000
01993877 (E.E.O.C. Jul. 10, 2000)

01993877

07-10-2000

Jeanne L. Boykins, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.


Jeanne L. Boykins, )

Complainant, )

)

v. ) Appeal No. 01993877

William M. Daley, ) Agency No. 97-63-0324

Secretary, )

Department of Commerce, )

Agency. )

____________________________________)

DECISION

On April 8, 1999, complainant filed an appeal with this Commission from

a final agency decision received by her on March 26, 1999, pertaining

to her 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. and Section 501 of the Rehabilitation Act of 1973, as amended, 29

U.S.C. � 791 et seq.<1> In her complaint, complainant alleged that she was

subjected to discrimination on the bases of race (Black), color (black),

and disability (unspecified condition affecting motor coordination) when:

On May 29, 1997, complainant took a test for an unemployment field

position and failed it after the Senior Representative who administered

the test did not tell her or any of the other test takers that they

needed twenty-three (23) points to pass the test.

The agency dismissed complainant's complaint pursuant to the regulation

set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. � 1614.107(a)(1)), for failure to

state a claim. Specifically, the agency noted that complainant's score

on the test was fourteen (14) points. The agency stated that even if

the administrator told complainant that the minimum passing score was

twenty-three (23) points prior to her taking the test, it would not have

changed the fact that complainant failed the test. Thus, the agency

argued that complainant failed to show that she suffered a harm or loss

to a term, condition, or privilege of employment for which there is a

remedy under EEOC law.

On appeal, the agency also argued that complainant's appeal should be

dismissed as untimely. The agency claimed that complainant received

the final agency decision on February 26, 1999, but stated that she did

not file an appeal with the Commission until April 8, 1999, beyond the

applicable thirty (30) day limitation period.

After a review of the record, we find that complainant's appeal was

timely filed. The record shows that the agency decision was mailed

to complainant on February 4, 1999, but was returned to the agency on

February 26, 1999, as undeliverable. A second mailing was attempted

and the record indicates that complainant received the second mailing of

the final agency decision on March 26, 1999. Thus, complainant's appeal

which was mailed on April 8, 1999, was timely filed within thirty (30)

days of her receipt of the final agency decision.

EEOC Regulation 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 21, 1994).

The record shows that complainant applied for a Census field position

at the unemployment office along with eight or nine other applicants.

Complainant and the other applicants took a test which was administered

by the Senior Representative. According to complainant's own statement,

the same test was given to all applicants and all applicants received

the same instructions on taking the test. A minimum score of 23 was

needed to pass the test, however, complainant received a score of 14.

Furthermore, complainant stated that she was not alleging that the test

itself was discriminatory.

In the present case, we find that complainant failed to state a

cognizable claim of employment discrimination since she failed to

show that she suffered an individual or unique harm as a result

of the alleged discriminatory action. As revealed by the record,

all the applicants for employment received the same test and the same

instructions on taking the test. The U.S. Supreme Court has held that

a generalized grievance shared by all or a substantially large class of

individuals is not sufficient to establish standing. Warth v. Seldin,

422 U.S. 490 (1975); See also Brown v. Social Security Administration,

EEOC Request No. 05980875 (November 4, 1999); Crandall v. Department

of Veterans Affairs, EEOC Request No. 05970508 (September 11, 1997).

Thus, complainant has not alleged that she was treated any differently

than the other applicants for employment nor has she shown that the

agency's action resulted in any specific harm to a term, condition, or

privilege of employment. Accordingly, the agency's decision to dismiss

complainant's complaint was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

July 10, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.