Sharon C. Nelson, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 15, 2000
01987054 (E.E.O.C. Feb. 15, 2000)

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.