01a03261
07-17-2000
Larry A. Sindel, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Larry A. Sindel v. Department of Veterans Affairs
01A03261
July 17, 2000
Larry A. Sindel, )
Complainant, )
)
v. ) Appeal No. 01A03261
) Agency No. 992952
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Larry A. Sindel (complainant) filed a timely appeal with this Commission
from the agency's final decision (FAD) dated March 1, 2000 dismissing 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.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). In his complaint, complainant
alleged that he was subjected to discrimination on the basis of reprisal
(prior EEO activity) when he was impeded from representing two individuals
during the informal counseling stages of their EEO complaints.
The agency dismissed the complaint pursuant to 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(1)), noting that complainant failed to establish that he
suffered any personal loss or harm with regard to a term or condition
of employment and therefore failed to state a claim. The agency also
dismissed the complaint pursuant to 64 Fed.Reg. 37,644, 37, 656 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(5)),
finding the complaint moot in that no relief would be available if
complainant prevailed.
ANALYSIS AND FINDINGS
An agency shall accept a complaint from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated or retaliated against by that agency because of race,
color, religion, sex, national origin, age, or disabling condition.
See 64 Fed. Reg 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.103; 1614.106(a)). An agency is only
required to address EEO complaints filed by an �aggrieved employee.�
See Quinones v. Department of Defense, EEOC Request No. 05920051
(March 12, 1992). 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. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 22, 1994).
An employee's right to EEO representation is sufficiently connected to a
term, condition, or privilege of employment so that abridgement of that
right by the agency would render him aggrieved. See Storey v. Department
of the Treasury, EEOC Request No. 05970843 (August 5, 1999). The right to
represent an employee in the EEO process, however, is not sufficiently
connected to a term, condition or privilege of employment to render
the representative aggrieved. A complainant who alleges a harm or lose
with respect to his representative capacity is not an aggrieved employee
and fails to state a cognizable claim. See Wildberger v Small Business
Association, EEOC Request No. 05960761 (October 8, 1998). Therefore,
the Commission affirms the agency's dismissal of this complaint for
failure to state a claim.<2>
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:
July 17, 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.
2 To the extent complainant's clients wish to raise concerns about
the agency's treatment of their designated representative in the EEO
process, they may bring those concerns to the attention of the agency
official responsible for the quality of complaint processing and, if they
remain unresolved, raise them within the context of their underlying EEO
complaints. See Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO-MD-110), 5-25 (as revised November 9, 1999).