05980240
11-04-1999
Randolph S. Koch Appellant, v. Arthur Levitt, Jr., Chairman, Securities and Exchange Commission,) Agency.
Randolph S. Koch v. Securities and Exchange Commission
05980240
November 4, 1999
Randolph S. Koch )
Appellant, )
) Request No. 05980240
v. ) Appeal No. 01972029
) Agency No. SEC 28-96
Arthur Levitt, Jr., )
Chairman, )
Securities and Exchange Commission,)
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
On December 29, 1997, Randolph S. Koch (appellant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Randolph S. Koch v. Securities and
Exchange Commission, EEOC Appeal No. 01972029 (November 13, 1997).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision. 29 C.F.R. �1614.407(a).
The party requesting reconsideration must submit written argument
or evidence which tends to establish one or more of the following
three criteria: new and material evidence is available that was
not readily available when the previous decision was issued, 29
C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); or the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3).
Appellant filed an EEO complaint in which he alleged that the agency
discriminated against him on the bases of age, disability (cardiovascular
condition), sex (male), race (White), religion (Jewish), and reprisal
when: 1) the agency denied him use of official time to work on EEO matters
and permission to use such time at home; 2) the agency "surreptitiously"
posted a position in order to insure the success of a preselected
candidate; 3) his previous EEO complaints were dismissed; and 4) an
associate director made negative comments about appellant regarding
his work performance, attendance, and his EEO related work during
office hours. In the final agency decision (FAD) dated December 10,
1996, the agency dismissed appellant's complaint for failure to state
a claim. That FAD was amended by a second FAD dated March 13, 1997,
in which the agency accepted allegation (1) for investigation.
The previous decision affirmed the agency's decision to dismiss
allegations (2)-(4) of his complaint. The previous decision found that
appellant failed to apply for the position mentioned in allegation (2),
and therefore appellant failed to state a claim. Further, the decision
stated that allegation (3) is an allegation of improper processing of
his EEO complaint which also fails to state a claim. Finally, the
previous decision found that in allegation (4), appellant failed to
provide evidence in the record to show he sustained any personal harm
or injury as a result of the comments made by the associate director.
In his Request to Reconsider (RTR), appellant argues that the Commission
erroneously found that his allegations failed to state a claim.
In particular, he states that the agency erected hurdles when it
posted the job announcement in order to thwart his application process.
Further, appellant argues that his allegations against the processing
of his prior EEO complaints were erroneously dismissed by the Commission
due to a mistake in its interpretation of facts.
Appellant's request for reconsideration involves the Commission's
regulations that require an agency to dismiss a complaint that
fails to state a claim where an employee is not aggrieved. See 29
C.F.R. �1614.107(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. Riden v. Department of the Treasury,
EEOC Request No. 05970314 (October 2, 1998).
Allegation (2) alleges that the agency posted a position in such a
way to ensure the success of a preselected candidate and to thwart his
application process. Appellant has stated in his RTR that the position
was published in a list of new announcements prior to the closing of the
application process.<1> The record further indicates that the Office
of Administrative and Personnel Management (OAPM) reposted the vacancy
for appellant but he failed to compete for the position.<2> We find
that appellant failed to show how he was harmed and therefore fails to
state a claim.
In allegation (3), appellant alleges that he was discriminated against
when his prior EEO complaints were dismissed. The Commission finds that
this allegation refers to the process by which his EEO complaint was
handled. Complaints regarding the EEO complaint process are considered
spin-off issues that cannot stand alone as a separate complaint. This
issue is to be directed to the appropriate agency official responsible
for the quality of complaints processing. See EEOC Management Directive
110 (EEO MD-110), p. 4-8 (October 22, 1992). Therefore, we find that
allegation (3) fails to state a claim.
Finally, allegation (4) raises the claim that an associate director
made negative comments about appellant regarding his work performance,
attendance, and his EEO related work during office hours. In this case,
appellant does not claim, and there is no evidence, that he was subjected
to any disciplinary action or received a suspension. Further, the
Commission has held that a remark or comment unaccompanied by concrete
action is not a direct and personal deprivation sufficient to render
an individual aggrieved. See Simon v. United States Postal Service,
EEOC Request No. 05900866 (October 3, 1990). Thus, the Commission finds
that allegation (4) is insufficient to state a claim.
Finding that appellant challenges actions which have not resulted
in a harm or loss with respect to a term, condition, or privilege
of employment, the Commission finds that allegations (2)-(4) fail to
state a claim. Consequently, based on our review of the record, we
find that appellant has failed to provide evidence which would warrant
a reconsideration of the previous decision.
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request does not meet the criteria of 29 C.F.R. �1614.407(c), and it is
the decision of the Commission to deny appellant's request. The decision
of the Commission in Appeal No. 01972029 remains the Commission's final
decision. There is no further right of administrative appeal from a
decision of the Commission on a request for reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
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.
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:
Nov. 4, 1999
DATE Frances M. Hart
Executive Officer
1 See appellant's RTR, p. 2.
2 See e-mail message to appellant from an OAPM Official dated April 4,
1996.