Joseph E. Baldus, Jr., Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMay 10, 2000
01a01593 (E.E.O.C. May. 10, 2000)

01a01593

05-10-2000

Joseph E. Baldus, Jr., Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Joseph E. Baldus, Jr., )

Complainant, )

)

v. ) Appeal No. 01A01593

) Agency No. AL900000205

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

____________________________________)

DECISION

On December 16, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) dismissing his complaint of

unlawful employment discrimination in violation of the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>

We accept the appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)

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

After unsuccessful EEO counseling, complainant filed a formal complaint

against the agency on October 27, 1999, claiming that he was discriminated

against due to his age when he was unfairly scored on a �mock� performance

appraisal, and the scores of all the participants were then posted on

the Share-drive. Complainant contends that disclosure of his score

ruined his reputation, and caused him health problems, resulting in the

use of sick leave.<2>

The agency's FAD dismissed the complaint for failure to state a claim,

finding that the performance appraisal was part of a �mock� personnel

exercise, having no bearing on a term, condition, or privilege of

employment of the participants.

On appeal, complainant repeats his complaint statements, and states that

the mock scores will be used in the actual performance appraisals, and

that the agency's conduct in this matter constitutes harassment.<3> In

response, the agency again indicates that complainant was not �aggrieved�

because the score was generated in a mock personnel exercise, has no

permanence, and that complainant failed to identify any harm in a term

or condition of his employment as a consequence of the score or its

inadvertent disclosure.

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).

In the instant case, we concur with the agency that complainant

has failed to show how he is aggrieved within the meaning of the

above legal standard. Specifically, he has failed to set forth how

his reputation was suffered an impact by either the low score or its

disclosure, or how it may have resulted in his claimed health problems.

Moreover, he has failed to show that this mock appraisal score affected

a term, condition, or privilege of his employment, and the record does

not support his contention that it was used in his subsequent actual

performance appraisal. Furthermore, notwithstanding complainant's

contentions to the contrary, we find that the record is insufficient to

support a claim of harassment. See Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997).

Accordingly, the agency's decision dismissing complainant's complaint

is hereby AFFIRMED for the reasons set forth herein.

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:

May 10, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1On 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.

2The record reveals that complainant also filed a claim under the Privacy

Act against agency regarding this matter.

3In his appeal, complainant also alleges various improprieties in the

processing of his EEO complaint. Complainant is advised to contact an

official in the agency's EEO office if he believes that his complaint

has been improperly processed.