0120091041
05-28-2009
Sherri C. Hutson, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Sherri C. Hutson,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120091041
Agency No. 2008-22238-FAA-03
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated November 18, 2008, dismissing her complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
During the relevant period, complainant worked as a Management and
Program Analyst at a Georgia facility of the agency. On August 14,
2008, complainant initiated contact with an EEO Counselor alleging
that the agency discriminated against her based on sex (female) when it
failed to select her for any one of four positions. On October 9, 2008,
complainant filed a formal EEO complaint alleging that the agency (1) in
July 2008, deceived and denied an opportunity to her and other employees
in her area to bid on four Supervisory Logistics Management Specialist
positions and (2) in May 2008, denied complainant an opportunity for a
detail to another organization.
In its November 18 final decision, the agency dismissed claim (1) for
failure to state a claim, asserting that complainant did not bid on
the positions at issue. As to (2), the agency stated that the alleged
denial of a detail occurred around March 15, 2008, but complainant did
not initiate EEO contact until August 15, 2008, which is outside of the
statutory timeframe. The instant appeal from complainant followed.
On appeal, complainant stated that the gist of her claim is that the
selecting official manipulated the selection process to hire a white
male and secretly intended to make four selections instead of three.
Complainant added that she did not apply for the three advertised
Specialist vacancies because she was not interested in a supervisory
position, but that the fourth position filled, which was added later,
performs a lot of the duties she performs. Complainant added that the
denial of a detail is background evidence and not a separate complaint.
The regulation set forth at 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. Dep't of the Air Force, EEOC Request No. 05931049
(April 21, 1994). The Commission has generally found that a claim of
discriminatory non-selection fails to state a claim where complainant did
not apply for the position. Owens v. Social Security Administration,
EEOC Request No. 05950865 (December 11, 1997). We find that, in the
instant case, complainant failed to show that her inability to apply
for the positions in question was attributable to the actions of the
agency. Eichhorn v. National Aeronautics and Space Administration,
EEOC Appeal No. 0120080361 (March 4, 2008). Based on complainant's
appellate statement, (1) is the only claim before the Commission and it
is not necessary to address the dismissal of (2). Based on the above,
we AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960,
Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 28, 2009
__________________
Date
2
0120091041
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091041