Larry A. Sindel, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 17, 2000
01a03261 (E.E.O.C. Jul. 17, 2000)

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).