Vicki M. Solomon, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 21, 2000
01996616 (E.E.O.C. Jul. 21, 2000)

01996616

07-21-2000

Vicki M. Solomon, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Vicki M. Solomon v. Department of Veterans Affairs

01996616

July 21, 2000

.

Vicki M. Solomon,

Complainant,

v.

Togo D. West, Jr.,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01996616

Agency No. 99-3666

DECISION

Vicki M. Solomon (complainant) filed a timely appeal with this Commission

from a final agency decision (FAD) dated August 13, 1999 dismissing

her complaint of unlawful employment discrimination in violation of

Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42

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

(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> In her

complaint, complainant alleged that she was subjected to discrimination

and harassment on the bases of sex (female), disability (unrecorded) and

reprisal (prior EEO activity) when she was issued a fraudulent treasury

check which was processed in an illegal manner.

The agency dismissed the complaint pursuant to EEOC Regulation 64

Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.107(a)(1)), noting that it did not allege a

personal harm or loss with respect to a term or condition of employment

and therefore did not state a claim.

On appeal, complainant argues that she suffered a loss with respect to a

term, condition and benefit of employment because the agency never issued

her final paycheck and issued an illegal check which she is precluded

from cashing. She alleges that this is a continuing pattern or practice

of discrimination.

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).

After a careful review of the record, we agree with the agency that

complainant has failed to establish that she is aggrieved. Although she

argues on appeal that she never received a final paycheck, an allegation

that does state a claim, Commission records reflect that this allegation

is the subject of a previously filed appeal that is still pending with

this Commission (EEOC Appeal No. 01995772). The subject complaint

merely alleges that a check complainant received was processed in an

illegal manner. This claim does not constitute a present harm or loss

with respect to a term, condition, or privilege of employment. Nor has

complainant offered any evidence to establish that the complaint states

a claim of harassment. See Cobb v. Department of the Treasury, EEOC

Request No. 05970077 (March 13, 1997).

Accordingly, the agency's dismissal of the complaint for failure to

state a claim was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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, Acting Director

Office of Federal Operations

July 21, 2000

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.