Larry Tomscha, Complainant,v.Davis J. Barram, Administrator, General Services Administration, Agency.

Equal Employment Opportunity CommissionJan 14, 2000
01990933 (E.E.O.C. Jan. 14, 2000)

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.