0120112377
12-22-2011
Teresa J. Montano, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency.
Teresa J. Montano,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Farm Service Agency),
Agency.
Appeal No. 0120112377
Agency No. FS-2011-00052
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated March 1, 2011, 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.
Upon review, the Commission finds that Complainant's complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
for the U.S. Postal Service in New Mexico. Complainant was not employed
by the Agency; rather, her husband was an Agency employee. On December
6, 2010, Complainant filed an EEO complaint alleging that the Agency
subjected her to discrimination on the bases of race (Caucasian),
national origin (Hispanic), sex (female), and marital status (married
to an Agency employee) when:
1. On or about October 21, 2010, management failed to launch an
investigation or take any corrective action after she reported having
received an anonymous letter at her workplace (U.S. Postal Service),
on October 4, 2010, which detailed her husband’s alleged affairs with
women at his workplace; and
2. On or about on September 20, 2010, management failed to launch an
investigation or take any corrective action after she reported having
received an anonymous letter at her residence, dated September 16, 2010,
which detailed her husband's alleged affairs with women at his workplace.
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1)
for failure to state a claim. The Agency determined that Complainant
was not an employee of the Agency and therefore had not suffered a
present harm or loss with respect to a term, condition, or privilege
of employment for which there was a remedy. As a result, the Agency
dismissed the complaint for failure to state a claim. Complainant
presented no arguments or contentions on appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides for the dismissal
of a complaint which fails to state a claim within the meaning of 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
capacity as an employee or applicant for employment.
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because Complainant failed to show that she suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Dep’t of the Air Force, EEOC
Request No. 05931049 (Apr. 21, 1994). Specifically, the Commission finds
that Complainant is neither an employee nor an applicant for employment
with the Agency and thus, Complainant lacks standing to advance her claims
through the federal sector EEO process. Accordingly, the Agency's final
decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 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 (S0610)
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 (Z0610)
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:
______________________________ December 22, 2011
Carlton M. Hadden, Director Date
Office of Federal Operations
2
0120112377
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013