Archie D. Reeves, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 7, 2000
01995474 (E.E.O.C. Feb. 7, 2000)

01995474

02-07-2000

Archie D. Reeves, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Archie D. Reeves, )

Complainant, )

)

v. )

) Appeal No. 01995474

Togo D. West, Jr., ) Agency No. 99-2472

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On June 25, 1999, complainant filed a timely appeal with this Commission

from a final agency decision, dated May 29, 1999, pertaining to his

complaint of unlawful employment discrimination in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>

The Commission accepts the appeal in accordance with EEOC Order No. 960,

as amended.

Complainant contacted the EEO office alleging that he had been subjected

to discrimination based on reprisal. Informal efforts to resolve

complainant's concerns were unsuccessful. Accordingly, complainant

filed a formal complaint, dated March 24, 1999, claiming harassment.

The agency framed complainant's claim as follows:

On February 8, 1999 complainant learned that statements made in an EEO

Counselor's Report (filed on June 30, 1999) by a management official

during complainant's prior EEO counseling were false and fabricated.

The agency issued a FAD dismissing the complaint for failure to state

a claim. Specifically, the FAD stated that complainant did not claim to

have suffered a personal loss or harm with respect to a term, condition,

or privilege of his employment. Further, the agency noted that there was

no indication that the alleged event was more than an isolated occurrence,

which did not rise to the level of harassment.

On appeal, complainant reiterates his claim of harassment. Complainant

also argues that the alleged event was not an isolated incident, noting

that on March 16, 1999 the VA official again lied to the EEO Counselor.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 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. Department of the Air Force, EEOC Request No. 05931049 (April 22,

1994).

In the instant case, complainant claims he was discriminated against

when a VA official made false statements about him to an EEO Counselor.

The Commission has repeatedly found that remarks or comments unaccompanied

by a concrete agency action are not a direct and personal deprivation

sufficient to render an individual aggrieved for the purposes of

Title VII. See Backo v. United States Postal Service, EEOC Request

No. 05960227 (June 10, 1996); Henry v. United States Postal Service,

EEOC Request No. 05940695 (February 9, 1995). Therefore, we do not

find that the alleged event renders complainant an �aggrieved� employee.

Further, we find that the complaint is not sufficient to state a claim

of discriminatory harassment. See Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997).

Accordingly, the agency's dismissal of the complaint for failure to

state a claim was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

February 7, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant1On November 9, 1999, revised

regulations governing the EEOC's federal sector complaint process

went into effect. These regulations apply to all federal sector

EEO complaints pending at any stage in the administrative process.

Consequently, the Commission will apply the revised regulations found

at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.