01A13458_r
07-11-2002
Paul Y. Bechtel, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Paul Y. Bechtel v. Department of Energy
01A13458
July 11, 2002
.
Paul Y. Bechtel,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A13458
Agency No. 99053/WAPA
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed. In his complaint, complainant alleged that he was
subjected to discrimination on the bases of sex, age, and reprisal for
prior EEO activity when:
1) Complainant was notified that he received "barely acceptable" ratings
on his application and was not selected for the position of Supervisor
II, Powerplant, Vacancy Announcement, GP-98-17;
Previously, in Bechtel v. Department of Energy, EEOC Appeal No. 01994850
(February 16, 2001), we remanded complainant's complaint to the agency
for clarification of complainant's claims. Complainant clarified
his claims in a March 31, 2001 response to the agency's request for
additional information. Complainant's response added the following
claim to his complaint<1>:
Complainant was not selected for the position of Power System Dispatcher.
In a decision dated April 23, 2001, the agency dismissed complainant's
complaint on the grounds that complainant has filed his complaint with the
wrong agency. Complainant's application for Supervisor II, Powerplant,
was properly submitted to the Bureau of Reclamation, Department of
the Interior. Accordingly, the agency found that complainant was
required to file his complaint with that agency. Further, the agency
reasoned that while complainant had applied to the Department of
Energy (Western Area Power Administration) for the position of Power
Dispatcher on April 22, 1999, the final selection for that position
was not made until May 25, 1999, and complainant was not notified of
his nonselection until June 15, 1999. Therefore, the agency reasoned
that complainant's April 7, 1999 complaint could not relate to that
application and non-selection. The agency dismissed the complaint,
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
On appeal, complainant claims that he is appealing his non-selection for
the position of Power System Dispatcher (a position with the Department
of Energy, Western Area Power Administration) for which a named person
(former hydro plant operator) with less experience was selected over him.
Complainant states that while the selection may have been finalized
after his complaint was filed, he acted as soon as he was informed by
telephone of his non-selection.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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,
.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).
The Commission concurs that claim 1 must be dismissed on the grounds that
it fails to state a claim. Complainant has applied for positions with
at least two agencies. Nothing in the record indicates that Vacancy
Announcement GP-98-17 was a Department of Energy vacancy. Claim 1 was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
We further find that complainant could not have been informed of his
non-selection for the position of Power System Dispatcher at the time
his complaint was filed on April 7, 1999. The record confirms that
complainant's application was post-marked April 19, 1999 and received
by the agency on April 22, 1999. The agency's decision to dismiss claim
2 was therefore proper.
Accordingly, we AFFIRM the agency's decision to dismiss complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(1).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 11, 2002
__________________
Date
1In his response, complainant states, "Jobs applied for were Power
Dispatcher, Substation Operator, Hydro Plant operator, Power Plant
Electrician." Of these four positions, the agency acknowledged complainant
applied only for the position of Power Dispatcher with the Department
of Energy.