01a02566
07-12-2000
Mary E. Buttermore, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Mary E. Buttermore v. Department of Veterans Affairs
01A02566
July 12, 2000
Mary E. Buttermore, )
Complainant, )
)
v. )
) Appeal No. 01A02566
Togo D. West, Jr., ) Agency No. 99-3952
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On February 12, 2000, complainant filed a timely appeal with this
Commission from an agency's decision 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
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1> The Commission accepts the appeal in
accordance with 64 Fed. Reg. 37,644, 37, 659 (1999) (to be codified at
29 C.F.R. �1614.405).
Complainant contacted the EEO office claiming she suffered discrimination
based on age and reprisal. Informal efforts to resolve her concerns
were unsuccessful. Accordingly, on November 1, 1999, complainant filed
a formal complaint. The agency framed the complaint as follows:
Non-Selection; on July 2, 1999, complainant learned that another person
was selected for Gastroenterology Nurse at the Nurse III Level.
On January 20, 2000, the agency issued a decision dismissing the complaint
for failure to state a claim. Specifically, the agency determined
that complainant did not apply for the position of endoscopy nurse,
although she had the opportunity to do so. According to the agency, the
application process was described in an e-mail sent to all registered
nurses on April 15, 1999. Further, the agency found that there was no
indication that complainant had been prevented from applying.
On appeal, complainant argues that she did not apply for the position
because she is already an endoscopy nurse at Brockton/West Roxybury VAMC.
Complainant contends that on May 12, 1999 she learned that a new nurse
was being hired at the Level III, Step 12 grade. Thereafter, complainant
asserts, she informed the Chief of Endoscopy of her frustration that
a newly hired nurse was making more money while complainant could not
obtain a promotion.
In response, the agency reiterates that complainant did not apply for
the position and therefore she has failed to state a claim.
The regulation set forth at 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 21, 1994).
In the instant case, complainant contends that her claim does not concern
the new hire and non-selection, but rather, the fact that she is not able
to obtain a promotion to the same level as the new nurse (Level III).
We find, however, that complainant had no right to be promoted to this
position, i.e. it does not appear to be a career ladder promotion nor
had complainant applied for the position. Accordingly, we find that
complainant has not shown that she was the victim of an adverse action as
a result of not having received the position. The alleged incident does
not render complainant an �aggrieved� employee. The agency's decision
to dismiss the complaint for failure to state a claim was proper and is
hereby 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 12, 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.