Thomasv.Millea, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 9, 1999
01970879 (E.E.O.C. Sep. 9, 1999)

01970879

09-09-1999

Thomas V. Millea, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Thomas V. Millea v. Department of Veterans Affairs

01970879

September 9, 1999

Thomas V. Millea, )

Appellant, )

) Appeal No. 01970879

v. ) Agency No. 89-07

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision concerning his complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq., and �501 of the Rehabilitation Act of 1973,

as amended, 29 U.S.C. �791 et seq. The final agency decision was

dated October 17, 1996, and received by appellant on October 19, 1996.

The appeal was postmarked on November 4, 1996. Accordingly, the appeal

is timely (see 29 C.F.R. �1614.402(a)), and is accepted in accordance

with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint for failure to state a claim and mootness.

BACKGROUND

Appellant originally filed a formal complaint on March 23, 1989, alleging

discrimination on the bases of disability (unspecified) and reprisal

(prior EEO activity). The agency issued a final agency decision on that

complaint on January 30, 1995, which was appealed to the Commission in

EEOC Appeal No. 01952671. The Commission issued a decision on that appeal

on March 3, 1996, remanding three of appellant's allegations for further

processing by the agency. The allegations remanded for processing were:

1) a request appellant made on February 12, 1989 for Continuation of Pay

(COP) on February 16, 21, 22 and 23, 1989 was denied;

2) although appellant requested COP for the dates of March 1, 2, 6, 8,

and 9, 1989, those absences were recorded as sick leave until he reported

the error; and,

3) although the Chief of Chaplain Service agreed that appellant could

use Leave Without Pay (LWOP) instead of annual leave for a therapy

appointment on February 23, 1989, he was not granted LWOP for that date.

In its final agency decision, the agency dismissed the remanded three

allegations of the complaint. It found that allegations 1, 2 and 3

failed to state a claim in that appellant was not aggrieved, and that

allegations 1 and 3 were moot. This appeal followed.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency

shall dismiss a complaint which fails to state a claim pursuant to 29

C.F.R. �1614.103. 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,

national origin, age or disabling condition. 29 C.F.R. �1614.103;

�1614.106(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). To establish that he is an

"aggrieved employee" and therefore state a claim under the regulations, a

complainant must allege that he was injured in fact. A term, condition or

privilege of employment has been held in Commission decisions to include,

inter alia, promotion, demotion, discipline, reasonable accommodation,

appraisals, awards, training, benefits, assignments, overtime, leave,

tours of duty, etc. Cobb v. Department of the Treasury, EEOC Request

No. 05970077 (March 13, 1997).

Allegation 2 was dismissed for failure to state a claim because

appellant's time card for that pay period reflected that he was not

charged sick leave for those dates but that rather he was granted the

COP status that he requested. Because appellant ultimately received

the COP status for those dates, we find that allegation 2 was properly

dismissed for failure to state a claim.

Allegation 3 failed to state a claim according to the agency because,

although it was originally recorded that appellant took annual leave on

February 23, 1989, his time card was subsequently corrected to reflect

his request for LWOP. Because appellant received the LWOP status that

he requested for February 23, 1989, we find that he has not suffered a

harm or loss to a term, condition or privilege of his employment.

The FAD argued that appellant was not aggrieved with respect to

allegation 1. On February 22, 1989, appellant was on regular duty status

and therefore was paid for the entire day and not charged any leave.

On February 23, 1989 appellant was not granted COP because he had instead

requested that he be granted LWOP (see allegation 3). We agree that

for those two dates appellant failed to state a claim with respect to

his request for COP.

Regarding the February 16, 1989 and February 21, 1989 requests for COP,

appellant, on those days, had instead taken sick leave totaling 5 hours.

Appellant retired from the agency in November 1989. The FAD argued

that appellant had not stated a claim for which relief could be granted

because there is nothing the agency could do to remedy the loss of the

5 hours of sick leave. Due to appellant's retirement, the agency could

not credit the hours to him for future use. According to the agency,

unused sick time can be used to increase the service of an employee

for annuity computation purposes, but for those purposes sick leave is

defined in terms of days, which consist of 8 hours. Appellant's loss of 5

hours does not equal one day, therefore, concluded the agency, appellant

would not be able to increase his sick leave credit time by one day.

Accordingly, appellant has failed to state a claim with respect to the

denial of COP on February 16 and 21, 1989.<1>

Accordingly, the decision of the agency was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

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. 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 (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:

September 9, 1999

______________ __________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1 Since we have determined that appellant's allegations fail to state a

claim, we do not find it necessary to address the agency's alternate

ground for dismissal, i.e., that allegations 1 and 3 are now moot.