01A05073
10-10-2001
Mary Jane McKenney, Complainant, v. Gordon R. England, Secretary, Department of the Navy, (Naval Surface Warfare Center), Agency.
Mary Jane McKenney v. Department of the Navy
01A05073
October 10, 2001
.
Mary Jane McKenney,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
(Naval Surface Warfare Center),
Agency.
Appeal No. 01A05073
Agency No. 00-000178-013
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to 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.
The record reveals that complainant was initially hired by the
agency as a Clerk-Typist. She was later reassigned to a position as an
Accounting Technician. In 1996, complainant's position was transferred
to Charleston, SC. In lieu of the physical move, complainant opted to
apply for an immediate retirement, which was subsequently approved.
In April 1997, complainant was hired by a private corporation to work
at the agency as a Data Management Specialist. The agency contends,
and complainant does not dispute, that the agency was not her employer
at the relevant time.
During her employ as a contractor, an Accountant position became available
at the agency (NSWCDD), and an individual was permitted to transfer
from another government agency to that position. Complainant was not
offered the position, which she had formerly held. Believing herself
to be a victim of discrimination, complainant initially contacted the
EEOC in Washington, DC. She subsequently contacted an EEO counselor
at the agency, and then, on May 15, 2000, filed a formal complaint of
discrimination. On June 18, 2000, the agency issued a final agency
decision (FAD) dismissing the complaint on the following bases: 1)
complainant was neither a federal employee nor an applicant for the
position; 2) complainant did not timely seek EEO counseling; and 3)
the complaint failed to state a claim.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides for the dismissal
of a complaint which fails to state a claim within the meaning of 29
C.F.R. � 1614.103. In order to establish standing initially under 29
C.F.R. � 1614.103, a complainant must be either an �employee� or an
�applicant for employment� of the agency against which the allegations
of discrimination are raised. In addition, the allegations must concern
an employment policy or practice which affects the individual in his
capacity as an employee or applicant for employment. 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; 1614.106(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 only proper questions in determining whether a claim is within the
purview of the EEO process are (1) whether the complainant is aggrieved
and (2) whether she has alleged employment discrimination covered
by the EEO statutes. Complainant is "aggrieved" if she has suffered
direct and personal deprivation at the hands of the employer. See
Hobson v. Department of the Navy, EEOC Request No. 05891133 (March 2,
1990). Here, complainant admits that she is a contractor, and neither an
employee nor an applicant for employment. However, she points out that she
is doing the same work that she had done as a government employee. She
also notes that she is certain that the agency could hire her back if
they so wished.
Even assuming the truth of complainant's contentions, complainant would
still lack standing to challenge the agency's decision to fill the job
that she had formerly held with a current government employee. Upon
review, the Commission finds that complainant's complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1). We need not reach the
issue of untimeliness since the failure to state a claim is, in and of
itself, an adequate basis for dismissing a complaint.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
October 10, 2001
__________________
Date