01992967
01-06-2000
Larry A. Sindel, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Larry A. Sindel, )
Complainant, )
)
v. ) Appeal No. 01992967
) Agency No. 08F/NLR
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final
agency decision (FAD) concerning 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 final agency decision was
dated February 12, 1999. The appeal was postmarked February 24, 1999.
Accordingly, the appeal is timely (see, 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified and hereinafter referred to as EEOC Regulation 29
C.F.R. � 1614.402(a)), and it is accepted in accordance with EEOC Order
No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed the complaint
as being moot.
BACKGROUND
The record indicates that on December 16, 1998, complainant initiated
contact with an EEO Counselor regarding his complaint. Informal efforts
to resolve concerns were unsuccessful. On December 22, 1998, complainant
filed a formal complaint, alleging that he was the victim of unlawful
employment discrimination on the bases of race (white), sex (male),
and reprisal when the agency denied him access to two of his clients'
informal counseling reports. On February 12, 1999, the agency issued a
final decision dismissing complainant's complaint as moot. Specifically,
the agency found that after the clients filed formal complaints, the
agency forwarded the two EEO files to complainant on January 11, 1999.
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 against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 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.� 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.
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. When the agency infringes
upon this right to EEO representation, the employee is aggrieved.
Morman v. Department of Air Force, EEOC Request No. 01964629 (March
17, 1997). However, the right to represent an employee in the EEO
process is not sufficiently connected to a term, condition, or privilege
of employment. A complainant who suffers a harm or loss with respect
to his representative capacity is not an aggrieved employee and fails
to state a cognizable claim. 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, rather than on mootness grounds.<2>
CONCLUSION
Accordingly, the agency decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
01/06/00 ____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On 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 that 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 complaints processing, and if
they remain unresolved, raise them within the context of their underlying
EEO complaints. See EEO Management Directive for 29 C.F.R. Part 1614
(EEO-MD-110) , p. 5-25 (as revised November 9, 1999).