01990603_01992393_r
06-20-2001
Robert W. Starnes, Complainant, v. Colin L. Powell, Secretary, Department of State, Agency.
Robert W. Starnes v. Department of State
01990603, 01992393
June 20, 2001
.
Robert W. Starnes,
Complainant,
v.
Colin L. Powell,
Secretary,
Department of State,
Agency.
Appeal No. 01990603, 01992393
Agency No. 98-54
DECISION
Complainant filed two timely appeals with this Commission from two agency
decisions dated September 28, 1998, and January 5, 1999, dismissing his
complaint of unlawful employment discrimination. In a formal complaint
dated September 19, 1997, complainant alleged that he was subjected to
discrimination in reprisal for prior EEO activity when:
Complainant received an incomplete and prejudicial Employee Evaluation
Report (EER) for the rating period from April 16, 1997, to April 15, 1998;
Complainant received an inaccurate EER for the rating period from
September 26, 1996, to April 15, 1997;
On May 19, 1998, the Regional Security Officer (RSO) informed complainant
that Person A made a comment at the Administrative Officer's Conference
that complainant received the worst EER she had ever written and she
was disappointed that Diplomatic Security promoted complainant anyway;
After complainant received a 1997 Nomination for Incentive Award
(Meritorious Honor Award), Person A, who had been on the Awards Committee,
asked that her name be removed from the approval document; and
Complainant's rating official for the period of April 16, 1997, to April
15, 1998, was emotionally unstable.
The agency issued a final decision dated September 28, 1998, accepting
issue (1) for investigation and dismissing the remaining issues for
procedural reasons. Specifically, the agency dismissed issues (2) and
(3) pursuant to the regulation set forth at 29 C.F.R. � 1614.107(a)(1),
for stating the same claim that is pending before or has been previously
decided by the agency or Commission. The agency dismissed issue (4)
pursuant to the regulation set forth at 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact. Specifically, the agency noted
that the alleged event occurred in 1997, however, complainant did not
initiate EEO Counselor contact until May 1998, which was beyond the
applicable limitations period. Finally, the agency dismissed issue
(5) pursuant to the regulation set forth at 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim.
Subsequently, on January 5, 1999, the agency issued a second decision
dismissing issue (1) of complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(7), for failure to cooperate.
The agency stated that it sent complainant's attorney interrogatories
for complainant to answer on October 29, 1998, with a notice of proposed
dismissal. When neither complainant nor his attorney provided answers
to these interrogatories, the agency dismissed complainant's complaint
for failure to cooperate.
This Commission decision addresses both the agency's September 28,
1998 dismissal, as well as the agency's January 5, 1999 dismissal.
With regard to issue (1), we find that the agency properly dismissed
this issue for failure to cooperate. The record contains a copy of the
October 29, 1998 interrogatory request which shows that the request was
sent to complainant's attorney and stamped received on November 3, 1998.
The October 29, 1998 interrogatory request contains a notice of proposed
dismissal which informed complainant and his attorney that failure to
respond within fifteen (15) days of receipt of the request would result
in dismissal of the complaint. The record reveals that complainant never
responded to the October 29, 1998 request. Complainant never provides
any explanation for this failure. Thus, the agency's dismissal of issue
(1) was proper.
In issue (2), complainant alleged that he was discriminated against when
he received an inaccurate EER for the period from September 23, 1996,
to April 15, 1997. The record indicates that complainant, previously,
filed a complaint with regard to his September 23, 1996, to April 15,
1997 EER in Agency Case No. 98-17 which is currently on appeal before the
Commission. Therefore, we find that the present and previous complaints
clearly involve the same claim and that complainant is precluded from
raising this issue again.
With regard to issue (4), we find that the agency properly dismissed
this issue for failure to timely contact an EEO Counselor. The date
of the alleged discriminatory incident in issue (4) occurred in 1997,
however, complainant did not contact an EEO Counselor until May 1998,
which was beyond the applicable forty-five (45) day limitation period.
With regard to issue (5), we find that the agency properly dismissed
this issue for failure to state a claim. Upon review, we find that
complainant failed to identify a harm or loss to a term, condition,
or privilege of employment for which there is a remedy.
Finally, with regard to issue (3), we find that although this issue was
dismissed for stating the same claim previously decided by the agency or
Commission, we find that it is more properly dismissed pursuant to the
regulation set forth at 29 C.F.R. � 1614.107(a)(1), for failure to state
a claim. In issue (3), complainant claimed that he was discriminated
against when Person A made a comment at the Administrative Officer's
Conference that complainant received the worst EER she had ever written
and she was disappointed that Diplomatic Security promoted complainant
anyway. The Commission has repeatedly found that remarks or comments
unaccompanied by a concrete agency action are not a direct and personal
deprivation sufficient to render an individual aggrieved for the purposes
of Title VII. See Backo v. United States Postal Service, EEOC Request
No. 05960227 (June 10, 1996); Henry v. United States Postal Service,
EEOC Request No. 05940695 (February 9, 1995). Thus, we find that the
agency properly dismissed this issue for failure to state a claim.
Accordingly, the agency's decision to dismiss complainant's complaint
was proper and is AFFIRMED.
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
June 20, 2001
__________________
Date