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

Equal Employment Opportunity CommissionMay 26, 2000
01992332 (E.E.O.C. May. 26, 2000)

01992332

05-26-2000

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


Mona L. Dogans, )

Complainant, )

)

v. ) Appeal No. 01992332

) Agency No. FW-98-22

Andrew M. Cuomo, )

Secretary, )

Department of Housing and Urban )

Development, )

Agency. )

____________________________________)

DECISION

INTRODUCTION

Mona L. Dogans (complainant) timely<1> filed an appeal on March 12, 1999,

with the Equal Employment Opportunity Commission (the Commission) from

a final agency decision (FAD), received by complainant January 9, 1999,

concerning 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.<2> The Commission hereby accepts the appeal in accordance

with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R.

� 1614.405).

ISSUE PRESENTED

Whether the agency correctly determined that one of complainant's claims

failed to state a claim and the other stated the same claim as a complaint

previously filed with the agency.

BACKGROUND

Complainant filed a formal complaint on July 9, 1998, alleging

discrimination on the bases of race (Black), sex (female), physical

disabilities (severe allergies and sinus) and reprisal (prior EEO

complaints) when: 1) when unlike three other �unplaced� employees in her

office, she was not returned to her position without having to compete;

and 2) when she was not selected for any of the positions for which she

applied. The agency's FAD, dated December 21, 1998, dismissed claim (1)

for failure to state a claim, and claim (2) for stating the same claim

as was contained in Agency Complaint No. FW-98-21. This appeal followed.

ANALYSIS AND FINDINGS

Claim 1

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).

With respect to claim (1), we agree with the agency that complainant's

status as an �unplaced� employee did not change the terms, conditions,

or privileges of her employment. Complainant remained in the position of

record, with the same duties and responsibilities. She was considered

�unplaced� because based on projections at the time, her position would

not exist in the reorganized agency. The agency then decided that there

would be no more �unplaced� employees at the agency, and that every

employee would receive a permanent position under the reorganization, so

complainant did not suffer a harm as the result of being characterized as

an �unplaced� employee. At best, complainant's status as an �unplaced�

employee was a notice of a proposed action. We find, therefore, that

claim (1) fails to state a claim.

Claim 2

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 that the agency shall dismiss a complaint

that states the same claim that is pending before or has been decided

by the agency or Commission. We agree with the agency that claim (2)

should be dismissed because the record shows that her claim regarding her

non-selections is the subject of an earlier EEO complaint (Agency Case

No. FW-98-21). We find, therefore, that claim (2) states the same claim

as one of complainant's earlier complaints, and should be dismissed.

CONCLUSION

The decision of the agency 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:

05-26-00 ____________________________

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

1 Complainant filed a request for an extension to file her appeal on

January 28, 1999. Complainant filed her appeal with the Commission on

March 12, 1999. Her appeal was docketed as appeal number 01993591.

Due to confusion surrounding her request for an extension, we will

consider her appeal to be timely filed.

2 On 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.