Randolph S. Koch Appellant,v.Arthur Levitt, Jr., Chairman, Securities and Exchange Commission,) Agency.

Equal Employment Opportunity CommissionNov 4, 1999
05980240x (E.E.O.C. Nov. 4, 1999)

05980240x

11-04-1999

Randolph S. Koch Appellant, v. Arthur Levitt, Jr., Chairman, Securities and Exchange Commission,) Agency.


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.