01983774
09-13-1999
Merlyn Hardesty, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Merlyn Hardesty v. Department of Transportation
01983774
September 13, 1999
Merlyn Hardesty, )
Appellant, )
) Appeal No. 01983774
v. ) Agency No. DOT-2982062
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning her 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. The final agency decision was dated April
3, 1998. The appeal was postmarked on April 15, 1998. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim.
BACKGROUND
Appellant filed a formal complaint on October 27, 1997, alleging
discrimination on the bases of sex (male) and reprisal (prior EEO
complaint) when beginning on June 5, 1997, and continuing to the present
the Department of Transportation, Federal Railroad Administration (DOT)
discriminated against him. Specifically, appellant alleged that the
agency: (1) ignored a letter from his lawyer informing it that appellant
had filed a formal EEO complaint, based on a non-selection (complaint
1), did not locate said complaint, and did not immediately process it
in accordance with 29 C.F.R. Part 1614; (2) issued a "deceptive and
misleading" final agency decision dismissing a "purported" identical
complaint to "interfere with and frustrate [the] prosecution" of
complaint 1; (3) refused to comply with Management Directive 110
(MD-110) by withholding the identity of the DOT official, who was
responsible for the quality of DOT's Part 1614 complaint processing
program, from the appellant; (4) imposed the cost of an OFO appeal onto
appellant; (5) refused to refer complaint 1 to the EEOC for a hearing,
despite appellant's continued demand that it do so; (6) refused to
serve all documents and decisions concerning the instant complaint on
complainant's designated legal representative and "invited legal error
in the processing of [complaint 1] to avoid addressing the merits of
the instant complaint."
In its final agency decision, the agency dismissed the complaint for
failure to state a claim, reasoning that it was a collateral attack on
the agency's processing of complaint 1. This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. 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. 29 C.F.R. �1614.103;
�1614.106(a). 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 21, 1994).
In his formal complaint, appellant alleged that there were problems
with the way that the agency handled complaint 1. This allegation
concerns difficulties that appellant experienced with the processing
of a previously filed EEO complaint. The guidance concerning an
allegation of improper processing requires that the agency refer a
pending complaint to the agency officials responsible for the quality
of complaint processing, and that those individuals earnestly attempt to
resolve dissatisfaction with the complaints process as early as possible.
See EEO MD-110 (4-8). EEO MD-110 provides that the agency must process
only those complaints in which the individual alleges that he was treated
differently, or is being adversely affected by the policy or practice
having a discriminatory effect on the processing of his complaint. Id.
We agree with the agency that appellant does not state a claim because
none of his allegations assert that he was treated differently or is
being adversely affected.
We advise the agency to address appellant's concerns with the processing
of complaints 1 and 2.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. 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 (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:
September 13, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations