01996722_r
03-30-2001
Richard P. Washburn, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Richard P. Washburn v. U.S. Department of the Army
01996722
March 30, 2001
.
Richard P. Washburn,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01996722
Agency No. BKHBFO9804I0050
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated July 30, 1999, dismissing his complaint of unlawful
employment discrimination brought pursuant to Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.;
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq.; and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission
accepts the appeal in accordance with 29 C.F.R. � 1614.405.<1>
According to the record, complainant contacted the agency's EEO office
on February 9, 1998, claiming that the agency eliminated his position
(GS-11 real estate appraiser) in order to place two co-workers into
two newly created real estate appraiser upward mobility positions,
pursuant to the terms of a settlement agreement. Complainant indicates
that the settlement agreement at issue was executed in April 1996 as
resolution of an EEO complaint filed in Federal district court against
the agency by the two named co-workers. Complaint contends that on
January 29, 1998, he discovered that the Federal district court did not
order the actions specified in the settlement agreement, and avers that
the settlement agreement should therefore be declared void because it
mandates prohibited personnel practices which ultimately resulted in
the discriminatory elimination of his position.
When EEO counseling did not successfully address his concerns, complainant
filed a formal EEO complaint on March 26, 1998, claiming discrimination on
the bases of sex, age, and disability regarding the placement of the two
co-workers in the upward mobility positions and the claimed elimination
of his position.
The agency dismissed the complaint for failure to state a claim,
finding that complainant's claim regarding the settlement agreement
fell outside the purview of EEO regulations. Alternatively, the agency
dismissed the complaint on the grounds of untimely EEO Counselor contact.
Specifically, the agency found that complainant had knowledge of the
purportedly discriminatory terms of the settlement agreement, as well as
the creation of the upward mobility positions, in the Spring of 1996, and
of the agency's draft re-organization plan (which purportedly eliminated
his position) in August 1997, such that his February 9, 1998 EEO contact
was beyond the forty-five (45) day time limitation.
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).
Although complainant claims that his position was eliminated, or
was slated to be eliminated, under the agency's re-organization plan,
purportedly because of the creation of the two upward mobility positions
under the settlement agreement at issue, the record reflects no change in
complainant's employment status, instead confirming that he continues to
encumber the same GS-11 real estate appraiser position. Moreover, review
of the record further fails to disclose a harm in a term, condition, or
privilege of complainant's employment sufficient to render him aggrieved
under the above stated legal standard.<2>
Accordingly, we conclude that the agency properly dismissed the instant
complaint on the grounds of failure to state a claim, and we AFFIRM
that determination.<3>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 30, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1In a statement received at the Commission on May 31, 2000, complainant
requests that we review the April 28, 2000 decision of the Merits
System Protection Board (MSPB) which dismissed his individual-right-of
action appeal for lack of jurisdiction. In this action, it appears
that complainant alleged reprisal for whistleblowing activities,
including the claims of discrimination raised in the instant complaint.
Complainant contends that the instant complaint is a �mixed complaint�
and that the MSPB and agency erred in failing to inform him about forum
election and appeal rights to the Commission. However, we find that the
instant complaint does not set forth a claim which is appealable to the
MSPB, such that it is not a �mixed case� as defined under 29 C.F.R. �
1614.302. We will review complainant's appeal regarding the agency's
dismissal of the instant complaint. However, the MSPB's determination
is not appealable to the Commission, and the agency did not err when
it did not provide complainant with notice regarding forum election in
mixed case complaints.
2On appeal, complainant contends that the agency improperly processed
the 1999 performance appraisals, and subjected him to a hostile work
environment, especially concerning a July 26, 1999 e-mail communication.
Complainant refers to the latter matter as a �spin-off� complaint.
It does not appear that complainant discussed these matters with an
EEO Counselor. Complainant is advised that if he wishes to pursue these
matters through the EEO complaint process, he is advised to contact an
EEO Counselor thereon.
3Since we are affirming the agency's dismissal on the grounds of failure
to state a claim, we will not address the agency's alternative grounds
for dismissal.