Ison Richwell, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionApr 25, 2002
01A20649_r (E.E.O.C. Apr. 25, 2002)

01A20649_r

04-25-2002

Ison Richwell, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Ison Richwell v. Department of Veterans Affairs

01A20649

April 25, 2002

.

Ison Richwell,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A20649

Agency No. 200L-2055

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated September 28, 2001, dismissing his complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq.

In his complaint dated March 5, 2001, complainant alleged that he was

subjected to discrimination on the bases of age and in reprisal for

prior protected activity when:

The agency failed to select complainant for multiple positions, including:

Equal Employment Specialist, GS-260-7/9/11, Announcement Number 00-98;

Employee Relations Specialist, GS-230-9, Announcement Number 00-58A;

Supervisory Personnel Management Specialist, GS-201-12, Announcement

Number 00-74; Supervisory Labor Relations Specialist, GS-233-12,

Announcement Number 00-73; Position Classification Specialist, GS-221-11,

Announcement Number 00-75.

The agency's EEO personnel failed to cooperate in good faith with the

EEO Counselor in the investigation of complainant's complaint.

The agency dismissed complainant's complaint. Specifically, the agency

determined that complainant raised claim 1 in a prior EEO complaint and

that claim 2 was an impermissible complaint expressing dissatisfaction

with the EEO process.

Claim 1

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that

the agency shall dismiss a complaint that states the same claim that is

pending before or has been decided by the agency or Commission.

The record reveals that in a complaint dated September 25, 2000,

complainant alleged that the agency engaged in unlawful discrimination

when it failed to select him for five positions. The record further

reveals that complainant's instant complaint regards non selection for

the same five positions contained in his previous EEO complaint.<1>

Consequently, we find that the agency properly dismissed claim 1 as

stating the same matter contained in a previous EEO complaint.

Claim 2

The agency dismissed this claim pursuant to 29 C.F.R. � 1614.107(a)(8).

However, we determine that it is more properly analyzed in terms of

whether it states a claim.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint 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,

.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).

In claim 2, complainant expresses dissatisfaction with the agency's

response to the EEO Counselor's investigation of the matters raised

in the instant complaint. We find that complainant did not identify

an injury to a term, condition, or privilege of his employment by the

agency action identified.

Accordingly, the Commission AFFIRMS the agency's dismissal of

complainant's complaint for the reasons set forth in this decision.

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

____April 25, 2002______________

Date

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

_______________________

1The Commission notes that although complainant states in his formal

complaint that he has �submitted six applications� for agency positions,

the record reveals he only specified five positions with respect to

this claim.