01975876
01-19-1999
Larry A. Graves v. Department of Veterans Affairs
01975876
January 19, 1999
Larry A. Graves, )
Appellant, )
)
)
v. ) Appeal No. 01975876
)
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs,)
Agency. )
)
DECISION
Upon review, the Commission finds that appellant's complaint was properly
dismissed pursuant to 29 C.F.R. �1614.107(a) for failure to state a claim.
In his complaint, appellant alleged that an EEO Official harassed him
by requesting that he clarify his complaint. Appellant also alleged
that he was subjected to discrimination when the EEO Specialist changed
appellant's EEO Counselor. A review of the record herein reveals that
appellant is attempting to challenge the agency's processing of his
EEO complaint. Previously, the agency would have been obligated to
treat appellant's allegations as a spin-off complaint, and process the
matters pursuant to 29 C.F.R. �1613.262(a) if they were timely raised.
However, with the implementation of 29 C.F.R. Part 1614, the Commission
omitted the Section dealing with spin-off complaints, and left only the
reference to reprisal in 29 C.F.R. �1614.101 which prohibits retaliation
for opposition to practices made unlawful under the governing statutes.
The new guidance for treating allegations of this nature requires that
the agency refer the complainant to the agency officials responsible for
the quality of complaint processing, and that those individuals earnestly
attempt to resolve dissatisfaction with the complaints process as early
as possible. See EEO MD 110 (4-8). EEO MD 110 provides that the agency
must process only those complaints in which the individual alleges that
she was treated differently, or is being adversely affected by a policy
or practice having a discriminatory effect on the processing of his
complaint.
The Commission notes that, despite his allegations, appellant has
failed to identify any damage suffered as a result of the agency's
actions. Specifically, appellant failed to show how the agency's
actions may have affected the ultimate outcome of his EEO complaint.
In addition, the Commission has previously held that allegations that
an agency improperly handled an EEO complaint do not support independent
allegations of improper processing, but must be addressed before, during,
or after the hearing or on appeal from a decision issued thereafter.
Kleinman v. USPS, EEOC Request No. 05940579 (September 22, 1994).
Finally, appellant has failed to identify a policy or practice having a
discriminatory effect on the processing of his complaint. Accordingly,
the final agency decision is hereby AFFIRMED.<1>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Jan. 19, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1In light of our dismissal of appellant's complaint on the grounds of
failure to state a claim, we need not address the agency's alternative
grounds for dismissal.