0120073553
10-30-2007
Robin Smith, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Robin Smith,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120073553
Agency No. ARFTEUST07MAY01983
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated July 24, 2007, dismissing her formal 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 time, complainant was a contract employee in the
position of Registered Nurse at the agency's McDonald Army Health Center
(MCAHC) in Fort Eustis, Virginia. The record further reflects that on
December 18, 2006, complainant resigned from her contractor position
with the agency.
On May 31, 2007, complainant initiated EEO Counselor contact. Informal
efforts to resolve her concerns were unsuccessful.
On July 10, 2007, complainant filed the instant formal complaint.
Therein, complainant claimed that she was subjected to discrimination
on the bases of race (African-American) and in reprisal for prior EEO
activity when:
a. on March 29, 2007, she learned that the agency had filled Registered
Nurse positions without considering her for the position, or allowing
her to compete for the positions; and
b. on May 24, 2007, she learned a Registered Nurse was hired by MCAHC
and she was not considered for the position.
In its July 24, 2007 final decision, the agency dismissed claims (a)
and (b) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a
claim finding that complainant was not aggrieved. Specifically, the
agency determined that complainant did not apply for any of the subject
positions that were filled during the relevant period.
On appeal, complainant argues that in its final decision, the agency
attempted to "add a disputed factual contention" concerning whether an
application was filed. Complainant states that the agency is involved
in a "disingenuous attempt to manipulate a valid claim." Specifically,
complainant argues that complainant had her resume on file in the
RESUMIX system. Complainant argues that the agency know she wanted a
job, was currently involved in an EEO complaint over the same position,
and that she had made numerous contacts with the agency's EEO office
regarding her desire for the position.
In response, the agency argues that only positions opened through "CPAC"
will have access to resumes in the RESUMIX system, but that MCHAC has
direct hire authority which does not have to go through RESUMIX to
fill a position. The agency argues that although complainant claims
that she applied through RESUMIX, this system was not used by MCHAC,
and that if complainant did not send her resume directly to MCHAC as
directed in the job announcement for the subject position, she would
not have been considered.
Regarding claim (a), the Commission determines that this matter
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. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). The Commission notes that evidence in the record
reflects that the two subject Registered Nurse positions were posted,
and that selection was made for both positions. We further note that
the record reflects that complainant did not apply for either position.
Therefore, we find that the agency properly dismissed claim (a) for
failure to state a claim.
Because we affirm the agency's dismissal of claim (a) for the reasons
stated herein, we find it unnecessary to address alternative dismissal
grounds.
Regarding claim (b), we determine that complainant's claim that on May 24,
2007, she learned a position was filled but that she was not considered
for the position, fails to state a claim. As noted above, the record
indicates that complainant did not apply for the subject position.
The agency's final decision dismissing the instant complaint for failure
to state a claim was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 30, 2007
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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