01992794x
12-07-1999
Darren A. Horn, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Darren A. Horn, )
Complainant, )
)
v. ) Appeal No. 01992794
) Agency No. 99-0271
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
______________________________)
DECISION
On February 16, 1999, the complainant filed a timely appeal with
this Commission from a final agency decision (FAD) received by him on
January 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> In his complaint,
the complainant alleged that he was subjected to discrimination on the
basis of reprisal for previous EEO activity when the Office of Resolution
Management (ORM) intentionally mishandled and delayed the processing of
his prior EEO complaints filed on March 3, 1997, and April 18, 1997.
The agency dismissed the complainant's complaint pursuant to 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(1)), for failure to state a claim.
The agency's FAD states that it was referring the complainant's claims to
the Deputy Assistant Secretary for the Office of Resolution Management
who has oversight responsibility over the EEO complaint process for
review and any appropriate action.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, 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. 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified at 29 C.F.R. � 1614.103); 29 C.F.R. �
1614.106(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 21, 1994).
In the instant case, the record clearly shows that the complainant's
claims constitute a challenge to the agency's processing of his March 3,
1997, and April 18, 1997, formal complaints. However, a claim that an
EEO office mishandled a complaint does not state an independent claim
under 29 C.F.R. � 1614. Moreover, under the new regulations, an agency
must dismiss a complaint that alleges dissatisfaction with the processing
of a previously filed complaint. See 64 Fed. Reg. 37,644, 37,656 (1999)
(to be codified at 29 C.F.R. � 1614.107 (a)(8)).
Accordingly, we AFFIRM the agency's dismissal of the complainant's
complaint pursuant to 29 C.F.R. � 1614.107.
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:
December 7, 1999
____________________________
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:
_________________________
__________________________
1 On 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.