01990649
11-18-1999
Dominic P. Ward, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Dominic P. Ward, )
Complainant, )
)
v. )
) Appeal No. 01990649
F. Whitten Peters, ) Agency No. AL900990102
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
On October 20, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD), dated October 1, 1998,
dismissing his complaint for failure to state a claim.<1> The Commission
accepts the complainant's appeal in accordance with EEOC Order No. 960,
as amended.
On July 21, 1998 complainant contacted the EEO office regarding claims
of discrimination based on reprisal. Specifically, complainant alleged
he was discriminated against when:
On June 16, 1998, the Lead EEO Counselor and Chief EEO Counselor of
the local EEO office (SM-ALC/CCD) interfered with his attempt to file a
discrimination complaint against SM-ALC/LI management officials. The Lead
EEO Counselor, with the knowledge of the Chief EEO Counselor, asked
complainant to withdraw his complaint, which dealt with complainant's
1998 job performance appraisal rating.
Informal efforts to resolve complainant's concerns were unsuccessful.
Accordingly, on September 9, 1998, complainant filed a formal
complaint<2>.
The agency dismissed complainant's complaint for failure to state a claim,
pursuant to 29 C.F.R. �1614.107(a). Citing the inquiry conducted by the
counselor, the agency stated that �there has been no interference with
[complainant's] complaint regarding [his] 1998 performance appraisal
rating.�
No contentions were made on appeal.
EEOC Regulation 64 Fed. Reg. 37,644, 37,656 (to be codified at 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. 29 C.F.R. �1614.103;
�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).
Here, complainant contends that he was asked to withdraw his complaint.
A review of the record does not reveal any agency action resulted from
the counselor's question. Further, complainant has failed to allege how
the request has caused him a present harm or loss with respect to a term,
condition, or privilege of employment. We find that the alleged facts do
not render complainant an �aggrieved employee.� Therefore, complainant's
complaint was properly dismissed for failure to state a claim.
Accordingly, the agency's dismissal of complainant's complaint 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
November 18, 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:
______________________
__________________________
1On 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.
2The Commission notes that the box for the alleged incident on
complainant's complaint form instructs to �See Continuation.� Any
attachment to the complaint, however, is absent from the record.
Nonetheless, we are able to determine complainant's claim from the
Counselor's Report, Notice of Right to File, and the FAD.