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

Equal Employment Opportunity CommissionJan 6, 2000
01992967 (E.E.O.C. Jan. 6, 2000)

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).