Phillip S. Osborne, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionNov 16, 1999
01991754 (E.E.O.C. Nov. 16, 1999)

01991754

11-16-1999

Phillip S. Osborne, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Phillip S. Osborne v. Department of Transportation

01991754

November 16, 1999

Phillip S. Osborne, )

Complainant, )

)

v. ) Appeal No. 01991754

) Agency No. 3-99-3004

)

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

______________________________)

DECISION

On December 28, 1998, complainant filed a timely appeal of a December 2,

1998 final agency decision, which was received by him on December 8,

1998, dismissing his complaint for failure to state a claim.<1>

In its final decision, the agency identified the claim of complainant's

September 25, 1998 complaint as whether complainant was discriminated

against when he was not selected for an Air Traffic Controller position

(FG-2152-12) under MPP Announcement: ASO-AAT-98-A161-29272. The agency

stated that complainant was not harmed since the subject announcement

was canceled on August 6, 1998, and the vacancy did not materialize.

64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.107(a)(1)) provides that prior to a request

for a hearing in a case, the agency shall dismiss an entire complaint that

fails to state a claim pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)

(to be codified and hereinafter referred to as 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 claims of discrimination are raised.

In addition, the claims must concern an employment policy or practice

which affects the individual in his/her capacity as an employee or

applicant for employment. The agency shall accept a complaint from any

aggrieved employee or applicant for employment who believes that he/she

has been discriminated against by that agency because of race, color,

religion, sex, national origin, age, or disability. 29 C.F.R. ��1614.103

and .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 complaint involved complainant's nonselection to the Air Traffic

Controller position at issue. The record indicates that complainant

applied for the position on May 27, 1998, but the subject vacancy

announcement was subsequently canceled on August 6, 1998. Although

complainant indicated that an Air Traffic Manager allegedly made a remark

that his chances of getting selected to that position were about nil,

we find that the subject remark in and of itself does not constitute

an actionable claim. See Henry v. United States Postal Service, EEOC

Request No. 05940695 (February 9, 1995). Since the vacancy announcement

at issue was canceled and no selection was made under that announcement,

we find that the complaint failed to state a claim. Accordingly, the

agency's final decision is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

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:

November 16, 1999

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:

_________________________

_________________________

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.