Donald W. Hunt, Jr., Appellant,v.Louis Caldera, Secretary, Department of the Army, National Guard Bureau, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
05990730_r (E.E.O.C. Nov. 4, 1999)

05990730_r

11-04-1999

Donald W. Hunt, Jr., Appellant, v. Louis Caldera, Secretary, Department of the Army, National Guard Bureau, Agency.


Donald W. Hunt, Jr., )

Appellant, )

)

v. ) Request No. 05990730

) Appeal No. 01982285

) Agency No. T0158TXA0398H

Louis Caldera, )

Secretary, )

Department of the Army, )

National Guard Bureau, )

Agency. )

)

DENIAL OF REQUEST TO RECONSIDER

INTRODUCTION

On May 21, 1999, Donald W. Hunt, Jr. (hereinafter referred to as

appellant) timely initiated a request to the Equal Employment Opportunity

Commission (the Commission) to reconsider the decision in Donald Hunt

v. Department of the Army, EEOC Appeal No. 01982285 (March 10, 1999).

EEOC regulations provide that the Commission may, in its discretion,

reconsider any previous decision. 29 C.F.R. �1614.407(a). The party

requesting reconsideration must submit written argument or evidence

that tends to establish one or more of the following three criteria:

new and material evidence is available that was not readily available

when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);

the previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy, 29

C.F.R. �1614.407(c)(2); or the decision is of such exceptional nature as

to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).

The appellant's request to reconsider is denied.

ISSUE PRESENTED

The issue presented is whether the previous decision properly affirmed

the final agency decision which dismissed allegation 3 for failure to

state a claim.

BACKGROUND

Appellant initiated contact with an EEO Counselor on November 6, 1997.

On December 5, 1997, appellant filed a formal EEO complaint wherein he

alleged that he was discriminated against on the basis of his physical

disability (right arm injury) when:

1. He was terminated from his full time position.

2. He was denied the opportunity to see his own physician after being

injured on the job.

3, On September 30, 1997, he was denied access to an EEO Counselor.

The agency dismissed allegation 3 on the grounds of mootness. Allegations

1-2 were accepted for investigation.

The Commission affirmed the dismissal of allegation 3 on the grounds of

failure to state a claim.<1> The Commission noted that appellant was

able to meet with an EEO Counselor on November 7, 1997, and again on

November 20, 1997. It observed that the delay appellant encountered in

meeting with an EEO Counselor did not reduce the amount of damages that

are potentially recoverable. The Commission concluded that appellant

did not establish that he suffered personal loss or harm as a result of

the delay in meeting with an EEO Counselor.

In his request for reconsideration, appellant argues that he suffered

harm as a result of the agency's actions. According to appellant, he was

diagnosed with major depression disorder two months after his termination.

Appellant states that he sustained late charges on most of his bills

and he did not receive the appropriate amount of continuation of pay.

ANALYSIS AND FINDINGS

In order to reconsider the Commission's previous decision, the appellant

must present evidence or argument that satisfies one of the criteria

of 29 C.F.R. �1614.407. After considering the appellant's request,

we find that he has not satisfied the criteria for reconsideration.

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss

a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.

For employees and applicants for employment, EEOC Regulation 29

C.F.R. �1614.103 provides that individual and class complaints of

employment discrimination prohibited by Title VII (discrimination on

the bases of race, color, religion, sex and national origin), the ADEA

(discrimination on the basis of age when the aggrieved individual is

at least 40 years of age) and the Rehabilitation Act (discrimination on

the basis of disability) shall be processed in accordance with Part 29

C.F.R. �1614 of the EEOC Regulations.

The only proper inquiry, therefore, in determining whether an allegation

is within the purview of the EEO process is whether the complainant is an

aggrieved employee and whether s/he has alleged employment discrimination

covered by the EEO statutes. 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 (Apr. 21, 1994).

In allegation 3, appellant alleged that he was denied access to an

EEO Counselor after his termination. The record reveals that although

appellant was prevented from meeting with an EEO Counselor on September

30, 1997, he subsequently met with an EEO Counselor on November 7, 1997,

and again on November 20, 1997. Appellant argues on appeal that he

suffered major depression and sustained late charges on most of his bills

after he was terminated. However, we agree with the previous decision

that the delay appellant experienced in meeting with an EEO Counselor

did not reduce the amount of damages that are potentially recoverable.

We find that appellant was not rendered aggrieved, and that allegation

3 therefore fails to state a claim under the EEOC Regulations.

After a review of appellant's request for reconsideration, the previous

decision, and the entire record, the Commission finds that appellant's

request does not meet the criteria of 29 C.F.R. �1614.407(a), and

it is the decision of the Commission to deny appellant's request.

The decision of the Commission in EEOC Appeal No. 01982285 remains the

Commission's final decision in this matter. There is no further right

of administrative appeal from a decision of the Commission on a request

for reconsideration.

RIGHT TO FILE A CIVIL ACTION (P0993)

The decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil action in an appropriate United States District Court.

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. 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.

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 4, 1999

DATE Frances M. Hart

Executive Officer

Executive Secretariat1Donald Hunt v. Department of the Army,

EEOC Appeal No. 01982285 (May 10, 1999).