01990933
01-14-2000
Larry Tomscha, Complainant, v. Davis J. Barram, Administrator, General Services Administration, Agency.
Larry Tomscha v. General Services Administration
01990933
January 14, 2000
Larry Tomscha, )
Complainant, )
)
v. ) Appeal No. 01990933
)
Davis J. Barram, )
Administrator, )
General Services )
Administration, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency 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 decision was issued on October
16, 1998. The appeal was postmarked November 10, 1998. Accordingly,
the appeal is timely. See Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. �1614.402)), and is accepted in accordance with EEOC Order
No. 960, as amended.
Complainant contacted an EEO Counselor on April 28, 1998, regarding
claims of discrimination. Specifically, complainant alleged that:
(1) He was discriminated against for assisting and/or representing
regional employees with their complaints when he learned that on or
about April 23, 1998 an agency employee (EE) had filed an Unfair Labor
Practice (ULP) complaint with the Federal Labor Relations Authority
(FLRA) against complainant; and
(2) On April 16, 1998 he received a letter from an agency official (AO),
containing threatening and/or harassing language.
Informal efforts to resolve complainant's concerns were unsuccessful.
Accordingly, on July 20, 1998, complainant filed a formal complaint
alleging that he was the victim of unlawful employment discrimination
on the basis of reprisal (prior EEO activity).
On October 16, 1998, the agency issued a final decision (FAD) dismissing
claim (1) of complainant's complaint as moot, and claim (2) for failure
to state a claim. Concerning claim (1), the agency determined that
because EE ultimately withdrew his ULP complaint, the effects of the
alleged discrimination had been eradicated. The agency also found no
reasonable expectation that the alleged discrimination would recur.
The agency therefore determined that claim (1) was moot. The FAD found
that claim (2) of complainant's complaint failed to state a claim.
The agency found that complainant had not been harmed with respect to a
term, condition or privilege of his employment by the alleged comments
made by AE. The agency determined that complainant was not an aggrieved
employee within the meaning of EEOC Regulations.
In claim (1), complainant alleged that the agency retaliated against
him for assisting employees with their EEO complaints when EE filed a
complaint of unfair labor practices against complainant, a Local Union
President. A review of the record indicates that EE alleged that during
negotiations with the agency concerning the complaint of another employee,
complainant made unfounded accusations that EE and his supervisor were
dating. The file contains a copy of a letter dated November 16, 1997
from EE to the National Union President regarding complainant's comments.
The record reveals that in April 1998, EE filed a complaint with the FLRA
charging complainant with unfair labor practices. The record indicates
further that EE subsequently requested to withdraw his ULP complaint
against complainant. The record contains a copy of correspondence dated
June 26, 1998 from the FLRA Regional Director approving EE's request to
withdraw his ULP charge.
The FAD dismissed claim (1) as moot, finding that EE's withdrawal of
the charge eradicated the effects of the alleged discrimination and
that there was no reasonable expectation that the action was likely to
recur. However, we find that the claim is more appropriately analyzed
to determine whether it states a claim pursuant to EEOC Regulations.
To establish standing as an "aggrieved employee" within the context of
EEOC Regulations and Title VII, complainant must be able to allege that
he has been injured in fact. See Hackett v. McGuire Bros., 445 F.2d 447
(3rd Cir. 1971). Specifically, complainant must allege some direct harm
which affects 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 21, 1994). Here, complainant has not demonstrated
how the ULP charge by EE affected the terms, conditions, or privileges
of his employment. We therefore determine that claim (1) was properly
dismissed for failure to state a claim.
We find also that the agency's dismissal of claim (2) was appropriately
dismissed for failure to state a claim. Complainant alleges in claim (2)
that he was discriminated against when AE made threatening statements
against him in a letter dated April 16, 1998. The Commission has
repeatedly found that remarks or comments unaccompanied by a concrete
agency action are not a direct and personal deprivation sufficient to
render an individual aggrieved for the purposes of Title VII. See Backo
v. U.S. Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry
v. U.S. Postal Service, EEOC Request No. 05940695 (February 9, 1995).
Because the alleged comments of AE did not result in any concrete
action by the agency, complainant is not an aggrieved employee within
the context of EEOC Regulations.
Accordingly, the agency's decision dismissing complainant's complaint
is hereby AFFIRMED for the reasons set forth herein.
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 at 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 at 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:
Jan. 14, 2000
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 ASSISTANT
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.