01a54393
11-04-2005
Everett M. Wendel, Complainant, v. Dan G. Blair, Acting Director, Office of Personnel Management, Agency.
Everett M. Wendel v. Office of Personnel Management
01A54393
November 4, 2005
.
Everett M. Wendel,
Complainant,
v.
Dan G. Blair,
Acting Director,
Office of Personnel Management,
Agency.
Appeal No. 01A54393
Agency No. 2005035
DECISION
Upon review, the Commission finds that the agency's decision dated May 4,
2005, dismissing complainant's complaint for failure to state a claim
is proper pursuant to 29 C.F.R. � 1614.107(a)(1). In its decision,
the agency defined the complaint as alleging that complainant was
discriminated against based on his disability (unspecified) when:
As of February 17, 2005, the agency's website omitted information
regarding Executive Order 13123;
As of February 4, 2005, the agency refused to acknowledge the rights of
individuals with psychological disabilities under Executive Order 13123;
On September 8 and 24, 2004, the agency omitted reference to Executive
Order 13123 and listed incorrect contact information on its website for
the Department of Interior's selective placement coordinator;
On July 17, 2004, the agency's second edition of the employment guide
for the disabled omitted mention of Executive Order 13124;
On April 30, 2002, the agency representatives continued to take
discriminatory stances in witness statements against complainant and
those with psychological disabilities;
On October 29, 2001, Person A supported the Department of Interior's
discriminatory activities by taking a discriminatory stance in witness
statements and thereby refusing to permit complainant to be considered
for positions; and
In October 1999, the agency's first edition of the employment guide for
disabled did not follow Executive Order 13124.
Complainant has not challenged the agency's framing of the complaint.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that prior to a
request for a hearing in a case, the agency shall dismiss an entire
complaint that fails to state a claim pursuant to 29 C.F.R. � 1614.103.
In order to establish standing initially under 29 C.F.R. � 1614.103,
a complainant must be either an employee or an applicant for employment
of the agency against which the claims of discrimination are raised.
In this case, there is no evidence in the record to show that complainant
ever worked at the agency (Office of Personnel Management (OPM)) or
applied for any agency (OPM) positions. It appears that complainant did
file complaints against the Department of Interior concerning alleged
nonselection(s). Furthermore, complainant's challenge against OPM
employees' statements in the context of other EEO proceedings fails
to render complainant aggrieved, because such a challenge amounts to a
collateral attack on the other proceedings. Based on the foregoing, the
Commission finds that complainant has no standing to file a complaint
against the agency and, thus, the instant complaint fails to state
a claim.
Accordingly, the agency's decision dismissing the complaint is
AFFIRMED.<1>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 4, 2005
__________________
Date
1Although the agency dismissed the complaint on the alternative
grounds due to untimely EEO Counselor contact, we need not discuss
such in this decision because the dismissal is affirmed for failure
to state a claim.