0120160396
03-23-2016
Bennett W.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bennett W.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160396
Agency No. 200303232015105954
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated October 29, 2015, dismissing his complaint of unlawful employment discrimination in violation of an unidentified statute.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Veterans Service Representative at the Agency's Veterans Benefits Administration facility in Jackson, Mississippi. On October 21, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination under an unidentified basis when:
1. On August 10, 2015, Complainant was placed on an Performance Improvement Plan (PIP): and
2. On August 10, 2015, Complainant was assigned a heavier workload than his coworkers, a workload with a lower rating so this he is not getting the necessary production point values to meet his production standards.
The Agency dismissed the claims for failure to state a claim on the grounds that Complainant failed to identify a basis/bases for his claims of discrimination.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any employee or applicant for employment who believes 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The Agency found that Complainant failed to identify any bases for his claims and therefore failed to state a claim. The FAD noted that during his initial Counselor contact, Complainant was twice asked to "provide a discriminatory reason concerning why you were placed on a PIP, and why you believed your workload assignments were not equal to your coworkers. When you were asked to identify a discriminatory basis, you stated 'unspecified'." The FAD next noted that Complainant was sent a cover letter summarizing the discussion he held with the Counselor. That cover letter, the FAD found, noted that the basis of discrimination was "unidentified." The letter notified Complainant that if the letter contained any inaccuracies he should contact the Counselor but he failed to do so.
The FAD next noted that in his Formal Complaint, Complainant specifically stated that the basis of his complaint was "unidentified." The FAD noted that the Formal Complaint form specifically states:
NOTE: For each employment related matter that you believe was discriminatory you must list the bases (list one or more of the following): Race (Specify), Color (Specify), Religion (Specify), Sex (Male or Female), National Origin (Specify), Age (Provide date of birth), Disability (Specify), Genetic Information (including family medical history), and/or Reprisal for participating in the EEO process or opposing unlawful discrimination.
The FAD further noted that similar language identifying the various possible bases supporting a discrimination claim appears in at least two other places on the Formal Complaint form. Finally, we note that on appeal, Complainant has submitted an Appellate Brief but has still not identified a basis for his claims. We therefore find that Complainant has failed to state a claim of employment discrimination and we AFFIRM the FAD.
CONCLUSION
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 23, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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