Mona L. Dogans, Appellant,v.Andrew M. Cuomo, Secretary, Department of Housing and and Urban Development, Agency.

Equal Employment Opportunity CommissionOct 12, 1999
01986529 (E.E.O.C. Oct. 12, 1999)

01986529

10-12-1999

Mona L. Dogans, Appellant, v. Andrew M. Cuomo, Secretary, Department of Housing and and Urban Development, Agency.


Mona L. Dogans v. Department of Housing and and Urban Development

01986529

October 12, 1999

Mona L. Dogans, )

Appellant, )

)

)

v. ) Appeal No. 01986529

) Agency No. FW 97 55

)

Andrew M. Cuomo, )

Secretary, )

Department of Housing and )

and Urban Development, )

Agency. )

______________________________)

DECISION

On August 26, 1998, appellant filed a timely appeal of a final agency

decision, which was dated July 17, 1998, dismissing her complaint,

pursuant to 29 C.F.R. �1614.107(a), for failure to state a claim.<1>

In its final decision, the agency identified the allegation of appellant's

May 24, 1997 complaint as whether appellant was discriminated against

when on April 24, 1997, she was informed that she was not eligible to

participate in the Office of Administration's 1997 Mid-Level Development

Program. The agency stated that the subject training for which appellant

applied was, subsequently, canceled and no one was selected to participate

in it.

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss

a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.

The Commission has held that an employee is aggrieved when one 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, 1997).

Upon review, we find that the complaint fails to state a claim.

It appears that the April 24, 1997 eligibility solely related to the

training program at issue; it was not an eligibility determination used

in for any other programs. Since the record clearly indicates that

the subject training program was subsequently canceled and no one was

selected to participate in it, we find that there is no remedy available

to appellant even if appellant were found to have been discriminated

against with regard to the eligibility determination.

Accordingly, the final agency decision is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

October 12, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1The agency was unable to supply a copy of a certified mail return receipt

or any other material capable of establishing the date appellant received

the agency's final decision. Accordingly, since the agency has failed

to fulfill its obligation to transmit its final decision by a method

enabling the agency to show the date of receipt, the Commission presumes

that appellant's appeal was filed within thirty (30) days of receipt of

the agency's final decision. See, 29 C.F.R. �1614.402.