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.