05980553
11-29-2000
Lynn D. Abernethy, Jr., Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Lynn D. Abernethy, Jr. v. U.S. Department of the Treasury
05980553
November 29, 2000
.
Lynn D. Abernethy, Jr.,
Complainant,
v.
Lawrence H. Summers,
Secretary,
Department of the Treasury,
Agency.
Request No. 05980553
Appeal No. 01971501
Agency No. 96-1327
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant filed a request with this Commission to reconsider the
decision in Lynn D. Abernethy, Jr. v. U.S. Department of the Treasury,
EEOC Appeal No. 01971501 (March 9, 1998).<1> EEOC Regulations provide
that the Commission may, in its discretion, reconsider any previous
Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
On September 26, 1996, complainant filed a formal discrimination complaint
claiming interference with the EEO process and retaliatory harassment by
the agency, based on his protected activities as an EEO representative.
Specifically, complainant claims that while he was out of the country
on vacation, certain agency officials pressured one of his �clients�
to cancel their representation agreement and to execute a settlement
agreement in lieu of pursuing the EEO complaint.
On November 12, 1996, the agency issued a final decision dismissing the
instant complaint on the grounds of failure to state a claim. The agency
found that complainant had no standing because he did not show how he
was aggrieved in a term, condition, or privilege of his employment by
the action at issue. The agency further found that in this matter,
it would be complainant's �client,� not complainant, who would have
standing to bring this action.
On appeal, complainant argues that the agency's actions constitute
interference with the EEO process not only in the present case, but
that it is part of an overall pattern of such conduct. Additionally,
complainant contends that the agency acts ruthlessly against employees
who engage in the EEO process, and that he has been a victim of this
reprisal as well. Together, complainant asserts that these actions
create a chilling effect on the EEO process at the agency.
In our previous decision, we affirmed the agency's decision, finding
that the complaint was properly dismissed because complainant failed to
state a claim. See 29 C.F.R. � 1614.107(a)(1).
Complainant then filed the instant request for reconsideration of
our previous decision repeating the same arguments raised on appeal,
referring the Commission to certain EEO cases he has pending in the
administrative process as proof of a concerted effort on the part
of the agency to retaliate against him because of his EEO activity.
Complainant additionally argues that the claimed interference with his
duties as an EEO representative in the instant complaint is part of this
larger scheme of harassment in which the agency has retaliated against
him in a multitude of ways.
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 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 loss
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). Furthermore,
regarding complainant's claim of retaliatory harassment, we find that
because complainant, as an EEO
representative, has no standing to bring the instant action, he
similarly cannot state an actionable claim of harassment with regard
to the instant claim. See generally Harris v. Forklift Systems, Inc.,
510 U.S. 17, 22 (1993).
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01971501 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 29, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.