01987054
02-15-2000
Sharon C. Nelson, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Sharon C. Nelson v. Department of the Navy
01987054
February 15, 2000
Sharon C. Nelson, )
Complainant, )
)
v. )
) Appeal No. 01987054
Richard J. Danzig, ) Agency No. DON 98-00246-004
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On September 24, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD), dated August 27, 1998,
dismissing her complaint.<1> The Commission accepts the complainant's
appeal in accordance with EEOC Order No. 960, as amended.
On March 4, 1998 complainant contacted the EEO office regarding claims
of discrimination based on race, sex, and age. Informal efforts
to resolve complainant's concerns were unsuccessful. Accordingly,
complainant filed a formal complaint dated June 24, 1998. The agency
defined the claims as follows:
Complainant was told her position, Librarian, GS-1410-09, MWR, was
being targeted for abolishment in February 1997; and,
The MWR Director interfered with complainant's managerial duties by
withholding funds and scheduling manager meetings at times she could
not attend from 1993 and continuing until complainant left this position
in April 1997.
The agency dismissed complainant's claims for untimely counselor contact
and failure to state a claim. Specifically, the agency determined that
claim (a) occurred in February 1997, and that therefore complainant's
March 4, 1998 contact was beyond the time limitation. The agency further
determined that claim (b) occurred between 1993 and April 1997, but was
not brought to the attention of a counselor until May 8, 1998.
With respect to the targeted abolishment of her position identified in
claim (a), the FAD indicated that complainant had not alleged a harm as
she had voluntarily applied for and accepted a lateral reassignment.
Similarly, the agency stated that, with respect to claim (b),
complainant did not indicate how she was harmed by the Director's
interference with her managerial duties.
The FAD also dismissed claim (a) as a proposal to take personnel action
and claim (b) was considered moot.
EEOC Regulation 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
and hereinafer referred to as 29 C.F.R. �1614.107(a)(1)) provides,
in relevant part, that an agency shall dismiss a complaint, or portion
thereof, 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; �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).
In the instant case, the Commission finds that the agency properly
dismissed complainant's complaint for failure to state a claim.
Complainant has not alleged facts sufficient to suggest she has suffered
a present harm or loss with respect to a term, condition, or privilege
of employment. Neither the alleged notice that complainant's position
would be abolished nor the alleged interference by the Director in
complainant's duties renders complainant an "aggrieved employee".
Because we affirm the agency's decision to dismiss complainant's complaint
for the reason stated above, we find it unnecessary to consider whether
the complaint was properly dismissed on alternative grounds.
Accordingly, the agency's decision dismissing complainant's complaint
is 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).
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:
February 15, 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:
__________ _________________________________
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.