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.