Joe E. Perry, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 9, 2000
01990766 (E.E.O.C. Aug. 9, 2000)

01990766

08-09-2000

Joe E. Perry, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Joe E. Perry v. Department of Veterans Affairs

01990766

August 9, 2000

Joe E. Perry, )

Complainant, )

)

v. ) Appeal No. 01990766

) Agency No. 96-0342

Hershel W. Gober, ) Hearing No. 140-96-8215X

Acting Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

Complainant filed an appeal with this Commission from a final agency

determination<1> pertaining to 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.<2> The Commission accepts the

appeal as timely filed in accordance with 64 Fed. Reg. 37,644, 37,659

(1999)(to be codified at 29 C.F.R. � 1614.405).

On September 25, 1995, complainant contacted the EEO office regarding

claims of discrimination based on sex. Informal efforts to resolve

complainant's concerns were unsuccessful. Accordingly, complainant

filed a formal complaint dated October 17, 1995. In a letter dated

October 30, 1995, the agency notified complainant that his claim was

accepted for further processing and investigation. Specifically, the

agency framed the claim to be investigated as �[h]arassment (detailed)

on the basis of sex (male).�

Thereafter, on March 31, 1996, complainant was removed from his position.

He appealed his removal to the Merit Systems Protection Board (MSPB) on

April 8, 1996. On December 12, 1997, the MSPB AJ issued a recommended

decision, dismissing complainant's appeal as moot. Specifically, the

MSPB AJ determined that the agency had restored complainant as nearly

as possible to the status quo ante.<3> Further, the MSPB AJ concluded

that complainant had not established a viable claim of consequential or

compensatory damages.

On July 29, 1998, following the EEO investigation, a EEOC AJ issued a

Recommended Decision without a hearing. The EEOC AJ determined that

the issue of whether complainant was detailed due to sex discrimination

was addressed or should have been addressed by the MSPB. The EEOC AJ

found that �[b]y pursing the MSPB appeal process for his removal, the

complainant constructively selected the MSPB forum� and he was therefore

precluded from utilizing the EEO process. Complainant contended that he

only raised the removal issue, and not the detail issue, with the MSPB.

However, the EEOC AJ found that the detail issued merged with the removal

issue and that the two were �inextricably intertwined.�

In a letter from an agency Director to an agency Regional Office, dated

August 7, 1998, the Director indicated that the agency was unable to

issue a decision because the AJ's recommended decision �is a procedural

one.� The agency did not thereafter issue a final decision following

receipt of the AJ's recommended decision.

On appeal, complainant reiterates his argument that he only raised the

removal issue with the MSPB; and that the detail was only referenced in

the MSPB decision as background for his affirmative defense of sex and

reprisal discrimination. Further, complainant contends that the removal

was not predicated on the incidents raised in his EEO complaint.

In response, the agency contends that the AJ properly dismissed the

complaint on the grounds that complainant raised the matter through an

appeal with the MSPB. Further, the agency asserts that the complaint

fails to state a claim. Specifically, the agency notes that the allegedly

discriminatory detail was never implemented in that complainant never

reported to the position. The agency also argues that complainant

failed to establish a prima facie case of sex discrimination and that,

given his subsequent reassignment, the complaint is moot.

The Commission first notes that the agency never issued a final decision

that dismissed the instant complaint for any of the grounds set forth

in EEOC Regulation 29 C.F.R. �1614.107. The Commission further notes

that the agency states that the AJ's recommended decision to dismiss

complainant's complaint became final when the agency did not issue a

final decision within sixty day's of the AJ's recommended decision.

Moreover, the agency indicated by letter dated August 7, 1998, that it

would not issue a final decision regarding the matter raised in the AJ's

recommended decision. The Commission will construe the agency letter of

August 7, 1998, as a final decision, timely appealed to the Commission.

The agency argues on appeal, for the first time, that the detail issue

fails to state a claim. Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter cited as 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).

The record reveals that complaint never physically reported to the detail.

According to his affidavit, complaint stated that he was on sick leave

during the time of the detail. Therefore, we find that complainant

has failed to allege the detail resulted in a harm or loss to a term,

condition, or privilege of his employment. The alleged agency action

does not render complainant an aggrieved employee, as it was never

instituted.

Because of our disposition we do not consider whether the claims were

properly dismissed on other grounds.

Accordingly, the agency's decision to dismiss the complaint was proper

and is hereby AFFIRMED.

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

August 9, 2000

____________________________

Date Carlton M. Hadden, 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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

1The Commission rejects the agency's arguments regarding the timeliness

of complainant's appeal. The Commission shall utilize its discretion

in accepting complainant's appeal. See 29 C.F.R. 1614.604(c).

2On 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.

3The agency rescinded its removal action. Although complainant's former

position had been abolished for approximately three months, the agency

placed complainant in a substantially equivalent position.