01a00721
03-28-2000
Ronald Modesto, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Ronald Modesto, )
Complainant, )
)
v. ) Appeal No. 01A00721
) Agency No. 9V1M99457
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
____________________________________)
DECISION
On October 26, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on October
6, 1999, pertaining to his 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 Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> Pursuant to 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405),
the Commission accepts the complainant's appeal from the agency's final
decision in the above-entitled matter.
ISSUE PRESENTED
The issues presented herein are whether the agency properly dismissed
the instant complaint for failure to initiate timely contact with an
EEO Counselor and for failure to state a claim.
BACKGROUND
The record reflects that on July, 26, 1999, complainant initiated contact
with an EEO Counselor. During the counseling period, complainant stated
that he had been continuously denied employment. However, during the
counseling period, complainant refused to provide any information
with regards to the positions for which he applied and was subsequently
not selected. Counseling failed, and on September 17, 1999, complainant
filed a formal complaint claiming he was the victim of unlawful employment
discrimination on the bases of his disability (physical) and reprisal
(prior EEO activity). The formal complaint was comprised of the matter
for which complainant underwent EEO counseling, discussed above.
On October 5, 1999, the agency issued its final decision dismissing the
present complaint for failure to initiate contact with an EEO Counselor
within forty-five days of the alleged discriminatory event and for
failure to state a claim.
ANALYSIS AND FINDINGS
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 21,
1994).
Before the Commission or the agency can consider whether the agency has
discriminated against complainant in violation of Title VII, it first
must determine whether complainant is an agency employee or applicant
for employment within the meaning of Section 717(a) of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e-16(a).
Section 717(a) provides in relevant part that "[a]ll personnel actions
affecting employees or applicants for employment . . . in executive
agencies . . . shall be made free from any discrimination based on race,
color, religion, sex, or national origin." Thus, Section 717(a) expressly
prohibits discrimination by federal agencies against "employees" and
"applicants for employment." Section 717(a) does not expressly prohibit
discrimination by federal agencies against independent contractors.
Therefore, complainant is protected from discrimination by the agency by
Title VII only if he may be deemed an employee of the agency or applicant
for employment with the agency.
In this case, the complainant has not submitted any evidence to establish
that he was an applicant for employment with the agency. Accordingly,
since the record is void of any information that establishes his status
as an applicant or an employee for the agency, the Commission finds
that the agency properly dismissed the instant complaint.<2> Moreover,
EEOC Regulation 29 C.F.R. � 1614.106(c) provides that a complaint must
contain a statement that is sufficiently precise to describe generally the
action(s) or practice(s) that form the basis of the complaint. As stated
above, complainant has refused to provide any information with regards
to the positions he applied for and was not selected. Accordingly, the
Commission also dismisses the current complaint for failure to provide a
sufficiently precise statement that describes the basis of the complaint.
CONCLUSION
For the reasons set forth herein, the Commission hereby AFFIRMS the
decision of the agency dismissing the present complaint.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 28, 2000
____________________________
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 Equal Employment Assistant1On 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.
2Since the Commission has affirmed the dismissal of the current case for
failure to state a claim, the Commission will not consider the agency's
alternative ground for dismissal.