01992707
11-08-1999
Melvyn Bernstein, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Melvyn Bernstein v. Department of the Army
01992707
November 8, 1999
Melvyn Bernstein, )
Appellant, )
)
v. ) Appeal No. 01992707
Louis Caldera, ) Agency No. AFDEPI11I0580
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On March 25, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by appellant on January 29,
1999, pertaining to his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000 et seq.
Background
Appellant made two complaints of unlawful employment discrimination.
Appellant's first complaint, dated December 14, 1998, alleges
discrimination on the basis of race (white) and religion (Hindu, Jewish
origin) when a similarly situated black physician was given preferential
treatment.
Appellant's second complaint dated January 19, 1999 alleges retaliation
for protected EEO activity. The agency consolidated these allegations and
we consider them both in the instant appeal. We note that the appellant
has alleged a continuing violation.
After informal EEO counseling, the agency issued a Final Agency Decision
(FAD). The FAD defined appellant's allegations, and only partially
accepted his allegations for further investigation. The appellant raises
several grounds of appeal.
Analysis
On this appellate review, we lack the authority to consider appellant's
request to enforce the Freedom of Information Act and his request to
order the preclusion and production of evidence. We now turn to the
appellant's two remaining claims. We consider these issues as follows:
1. Did the agency err in formulating issues accepted for investigation,
relative to the initial discrimination claim and the retaliation claim?
2. Did the agency err in dismissing part of the appellant's complaint?
With regard to the agency's formulation of the appellant's issues,
we note that the FAD accepted some of the appellant's allegations for
investigation. The accepted allegations were set out within the FAD
in numbered paragraphs. The accepted allegations were not phrased in
terms acceptable to the appellant. He now asks that his allegations
be rephrased. In alternative to the agency's list of accepted
allegations, appellant offers his own rephrased allegations. We find
little difference between the accepted allegations and the appellant's
rephrased allegations. We do not believe that the allegations as listed
by the agency restrict the scope of the issues to be investigated.
Since the gravamen of the appellant's allegations have been accepted
for investigation, we will rely on the agency's investigation to provide
further clarification, determine culpability, and review evidence that
the appellant believes supports his allegations. We will not redefine
the allegations for investigation contained within the FAD.
We now consider whether the agency erred in dismissing items (aa), (bb),
(cc), and(dd). The agency dismissed the following allegations pursuant
to EEOC Regulation 1614.107(a), for failure to state a claim.
aa. Dr. Marius' agency derived income exceeds that of any other fee-basis
physician by at least 50%.
bb. Dr. Marius improperly regularly provides at his own expense rolls
and coffee.
cc. Dr. Marius supervises, collects moneys, purchases lottery tickets
and distributes winnings to Agency personnel on agency premises during
working hours.
dd. Dr. Marius performs medical acts, examines and medically advises
both civilian and military personnel while he and they are on duty.
In order to state a claim under the Commission's regulations, appellant
must show that he is aggrieved, meaning that s/he suffered an injury
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 21, 1994). With respect to the particulars of the
instant complaint, appellant is not aggrieved.
The harm or loss experienced by appellant must be direct or personal to
him. Gaines v. Department of the Air Force, EEOC Request No. 05960851
(February 27, 1998); Taylor v. U.S. Postal Service, EEOC Request
No. 05900367 (June 2, 1990). Allegations (aa), (bb), (cc), and (dd),
even if true, do not leave the appellant aggrieved within the meaning of
the regulations. We cannot recognize these allegations as claims because
they do not identify an injury to a condition of appellant's employment.
While these allegations are not independently cognizable, they may prove
factually relevant to the investigation of other claims.
Accordingly, it is the decision of the Commission to AFFIRM the agency's
FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1099)
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 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 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
11/08/1999 ____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations