Guy R. De La Houssaye, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 8, 1999
01994669 (E.E.O.C. Nov. 8, 1999)

01994669

11-08-1999

Guy R. De La Houssaye, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Guy R. De La Houssaye v. Department of Veterans Affairs

01994669

November 8, 1999

Guy R. De La Houssaye, )

Appellant, )

)

v. ) Appeal No. 01994669

) Agency No. 99-1339

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

The Commission finds that the agency's April 26, 1999 decision dismissing

a portion of appellant's complaint on the grounds of failure to state a

claim and because it states the same claim that is pending or has been

decided by the agency or Commission is not proper, in part, pursuant to

the provisions of EEOC Regulation 29 C.F.R. ��1614.107(a).

The record shows that appellant filed a formal complaint of discrimination

alleging that he had been discriminated against on the bases of race

(Black), color (black), national origin (Hispanic), and reprisal when: (1)

on August 14, 1997, he was harassed when the Injury Compensation Manager

did absolutely nothing with his paperwork in processing his OWCP claim;

(2) on September 6, 1998, he was informed by letter that his LWOP was

not to exceed September 6, 1998, and after that date he would have no

position in Engineering Service; and, (3) after September 30, 1998,

the responsible management official (RMO) had received many special

contribution awards with the blessings of the front office.

The agency issued a final decision accepting allegation (2) for

investigation. Allegation (1) was dismissed on the grounds that it

raised the same matter that had already been decided by the agency or

the Commission. The agency noted that appellant had raised this issue

on two different complaints, one of them "pending a hearing" before an

EEOC Administrative Judge (AJ). Allegation (3) was dismissed on the

grounds of failure to state a claim.

We find that the dismissal of allegation (1) was improper. The agency

held that the issue raised in allegation (1) had been previously raised by

appellant in two different complaints. The agency further found that the

issue was pending a hearing before an EEOC AJ. Nevertheless, the agency

has failed to provide evidence sufficient to enable us to determine that

said allegation was in fact previously raised by appellant and already

considered by the agency or the Commission. Absent such documentation

we are unable to affirm the agency's dismissal.

An agency shall accept a complaint from any aggrieved employee or

applicant 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

has held that while the regulations do not define the term "aggrieved

employee," the United States Supreme Court has interpreted it to mean

an employee 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). "To state a claim under our regulations, an employee must allege

and show an injury in fact." Id. (citing Hackett v. McGuire Bros., 445

F.2d 447 (3d Cir. 1971)). "Specifically, an employee must allege and

show a `direct, personal deprivation at the hands of the employer,' that

is, a present and unresolved harm or loss affecting a term, condition

or privilege of his/her employment." Id. (citing Hammonds v. United

States Postal Serv., EEOC Request No. 05900863 (Oct. 31, 1990); Taylor

v. United States Postal Serv., EEOC Request No. 05900367 (June 2, 1990)).

In allegation (3) appellant claims that he was discriminated against

when the RMO received many special contribution awards. Appellant has

failed to show how the awards in question caused him to suffer a harm

to the terms, conditions or privileges of his employment (appellant's).

Accordingly, we find that appellant has failed to show that he was

aggrieved. Therefore, allegation (3) was properly dismissed on the

basis of failure to state a claim.

Accordingly, the dismissal of allegation (3) is AFFIRMED. The dismissal

of allegation (1) was not proper and is hereby REVERSED. Allegation (1)

is REMANDED for further processing in accordance with this decision and

applicable regulations.

ORDER (E1092)

The agency is ORDERED to process the remanded allegation in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegation within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

of the appropriate rights within one hundred fifty (150) calendar days

of the date this decision becomes final, unless the matter is otherwise

resolved prior to that time. If the appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant and a copy

of the notice that transmits the investigative file and notice of rights

must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

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

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

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 your appeal with the

Commission, until such time as the agency issues its final decision

on your complaint. 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 (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:

11/08/1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations