01985859
03-31-2000
Douglas W. Boggs, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Douglas W. Boggs v. Department of Veterans Affairs
01985859
March 31, 2000
Douglas W. Boggs, )
Complainant, )
)
v. ) Appeal No. 01985859
) Agency No. 98-1368v
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
______________________________)
DECISION
INTRODUCTION
On July 22, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) concerning 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 accordance
with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405), the complainant's appeal from the agency's final decision in
the above-entitled matter has been accepted by the Commission.
BACKGROUND
Complainant initiated EEO counseling on July 3, 1997, and thereafter filed
a formal complaint on October 29, 1997. In his complaint, complainant
alleged that he was subjected to discrimination on the bases of race
(White) and sex (male) when on June 16, 1997, the Executive Vice President
of A.F.G.E. Local 2209, wrote to the Dayton VA Medical Center Associate
Director and others accusing complainant of running leads on various VA
employees and their relatives without probable cause.
Following its receipt of the complaint, the agency issued a FAD dated June
11, 1998, in which it dismissed the complaint pursuant to EEOC Regulation
29 C.F.R. � 1614.107(a) for failure to state a claim. The FAD states that
although complainant was investigated by the agency, he suffered no harm
or loss with respect to a term, condition or privilege of employment.
Therefore, the FAD states that complainant was not aggrieved, and the
complaint does not state a claim. In addition, the FAD states that the
complaint does not state a claim because complainant's allegations of
discrimination are against a union official acting in union capacity,
and the Department of Veterans Affairs (VA) has no jurisdiction over
the conduct of its employees acting in their capacity as union officials.
On appeal, complainant contends that he did suffer harm with respect
to a condition of employment when he was investigated by the agency,
prohibited from operating certain law enforcement equipment, and defamed
at union meetings. He also challenges the FAD's determination that the
agency has no jurisdiction over the conduct of its employees acting in
their official union capacity.
ANALYSIS AND FINDINGS
EEOC Regulation 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 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. 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).
We have previously found that actions taken by Union officials in their
representational capacity concerning protected matters are not actionable
under EEOC regulations. See Bray v. Department of the Treasury, EEOC
Request No. 05940748 (March 23, 1995). In this case, it is clear that
the union official was acting in her official representational capacity as
Executive Vice President of A.F.G.E. Local 2209 when she sent the letter
making allegations against complainant, e.g., the letter was written
on official Union stationery. Thus, complainant's complaint has not
alleged a personal loss as a result of agency action, and his complaint
fails to state a claim against the agency. Accordingly, we find that
the FAD properly dismissed the complaint for failure to state a claim.
In addition, we find that complainant's complaint fails to state a claim
because complainant suffered no harm or loss to a term, condition, or
privilege of employment. Although the union official's actions resulted
in an agency investigation of complainant, complainant was completely
exonerated by the agency. Accordingly, the FAD properly dismissed
complainant's complaint for failure to state a claim. We note that on
appeal, complainant raises new allegations regarding how he has suffered
harm to a condition of employment. Complainant is advised that if he
wishes to pursue these allegations through the EEO process, he shall
initiate contact with an EEO Counselor within 15 days after he receives
this decision. The Commission advises the agency that if complainant
seeks EEO counseling regarding the new allegations within the above 15
day period, the date complainant filed the appeal statement in which he
raised these allegations with the agency shall be deemed to be the date
of the initial EEO contact, unless he previously contacted a Counselor
regarding these matters, in which case the earlier date would serve
as the EEO Counselor contact date. Cf. Qatsha v. Dept. of the Navy,
EEOC Request No. 05970201 (January 16, 1998).
CONCLUSION
It is the decision of the Commission to AFFIRM the agency's dismissal
of complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
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:
March 31, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
___________________________
Date
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.