personnel action by the agency. We agree.
Plaintiff's Amended Complaint asserts that this Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 2000e-16, which essentially
extends all of the protections inherent in Title VII of the Civil Rights
Act, 42 U.S.C. § 2000e, et. seq. generally to employees of the
Federal Government. Specifically, 42 U.S.C. § 2000e-16(a) provides:
All personnel actions affecting employees or applicants for employment
(except with regard to aliens employed outside the limits of the United
States) in military departments as defined in section 102 of Title 5, in
executive agencies as defined in section 105 of Title 5 (including
employees and applicants for employment who are paid from nonappropriated
funds), in the United States Postal Service and the Postal Rate
Commission, in those units of the Government of the District of Columbia
having positions in the competitive service, and in those units of the
legislative and judicial branches of the Federal Government having
positions in the competitive service, and in the Library of Congress shall
be made free from any discrimination based on race, color, religion,
sex, or national origin.
Similarly, under 29 C.F.R. Part 1614, "[i]t is the policy of the
Government of the United States to provide equal employment opportunity
in employment for all persons, to prohibit discrimination in employment
because of race, color, religion, sex, national origin, age or handicap
and to promote the full realization of equal employment opportunity
through a continuing affirmative program in each agency" and thus "[n]o
person shall be subject to retaliation for opposing any practice made
unlawful by title VII of the Civil Rights Act, the Age Discrimination in
Employment Act, the Equal Pay Act, or the Rehabilitation Act or for
participating in any stage of administrative or judicial proceedings under
those statutes." 29 C.F.R. § 1614.101(a) and (b).
As noted in Section 1614.103(c),
Within the covered departments, agencies and units, this part applies
to all employees and applicants for employment, and to all employment
policies or practices affecting employees or applicants for employment
including employees and applicants who are paid from nonappropriated
funds, unless otherwise excluded.
In this case, nowhere in his Amended Complaint does Mr. Coates allege
that he is either an employee or an applicant for employment with the
Department of Labor. Rather, he avers only that he "is a former civilian
employee, having been employed by the Department of the Navy,
Philadelphia Naval Shipyard, from June, 1970 through June, 1995" and that
"DOL had engaged in reprisal, in violation of Title VII, by stonewalling
an investigation into his previous EEO complaint." (Pl's Amended
Complaint, ¶¶ 5, 45). While we would agree with Plaintiff that the
length of time which it took the Department of Labor to investigate and
resolve his complaint against the OWCP is indeed outrageous, it
nevertheless does not give rise to yet another cause of action under
either 42 U.S.C. § 2000e-16 or 29 C.F.R. Part 1614 given that he is
neither an employee or applicant for employment. Indeed, it is clear that
to maintain a cause of action against the United States, federal
agencies, or federal officials, the plaintiff must have a substantive
right to the relief sought and explicit Congressional consent authorizing
such relief. Brunetti v. Rubin, 999 F. Supp. 1408, 1410 (D.Colo. 1998).
In the absence of such express authorization then, we can only conclude
that the Plaintiff has failed to state a claim
against the defendant upon which relief may be granted. See Also,
Adams v. Chao, E.E.O.C. Appeal No. 01A11282, 2001 WL 991857 (Aug. 22,
2001); Wagner v. Henderson, E.E.O.C. Appeal No. 01A01553, 2000 WL
732059 (May 22, 2000).
An order follows.
AND NOW, this day of January, 2002, upon consideration of Defendant's
Motion to Dismiss Plaintiff's Complaint or in the Alternative, for
Summary Judgment, and Plaintiff's response thereto, it is hereby ORDERED
that the Motion is GRANTED and Plaintiff's Complaint is DISMISSED.
BY THE COURT: