0120122288
10-23-2012
Dollie Sugai, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Dollie Sugai,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120122288
Agency No. 11-63361-03818
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 5, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Administrative Assistant at the Agency's Navy Exchange (NEX) located in the Naval Air Station in Sigonella, Italy. On December 16, 2011, she filed a formal complaint alleging that the Agency discriminated against her based on her national origin (Canadian), sex (female), and reprisal for prior protected EEO activity under Title VII when:
1. Between March 2011 and September 2011 she was subjected to a hostile work environment; and
2. Effective September 10, 2011, the General Manager terminated her employment with the NEX for failure to qualify during her probationary period.
The Agency dismissed the complaint for failure to state a claim. It reasoned, in relevant part, that 29 C.F.R. � 1614.103(d)(4) provides that 29 C.F.R. Part 1614, which governs the processing of claims of employment discrimination in the federal sector, does not apply to aliens employed in positions, or who apply for positions, located outside the limits of the United States.
On appeal Complainant marshals various arguments for the proposition that the United States has jurisdiction to enforce various legal prohibitions against discrimination, and she is covered by them.
ANALYSIS AND FINDINGS
The Commission's regulations governing the federal sector complaints process expressly do not apply to non-citizens employed in positions located outside the limits of the United States. 29 C.F.R. � 1614.103(d)(4). It is undisputed that Complainant is not a U.S. citizen and worked in a position located outside the limits of the United States. Complainant's situation falls squarely within this regulation and the Agency correctly dismissed her administrative EEO complaint pursuant thereto. Thosantad v. Department of Justice (Drug Enforcement Administration), EEOC Appeal No. 0120102579 (Sept. 20, 2010), request for reconsideration denied, EEOC Request No. 0520110197 (March 2, 2011). 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 (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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 23, 2012
__________________
Date
2
0120122288
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122288