01A20121_r
09-11-2002
Alex Bowen, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Alex Bowen v. Department of the Treasury
01A20121
September 11, 2002
.
Alex Bowen,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A20121
Agency No. 01-4283
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated August 29, 2001, dismissing his 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race, sex, age, and in reprisal for prior
protected activity when:
(1) on October 19, 2000, while counseling complainant on his prior
complaint (TD Case No. 01-4120), the complainant's EEO Counselor
contacted him directly without contacting his designated EEO
representative;
(2) on May 23, 2001, the Assistant Director interfered with the
processing of complainant's prior complaint(TD Case No. 01-4120) as well
as the instant complaint, by issuing the complainant's representative a
memorandum restricting the official time allowed him for representation
of employees in EEO matters, thereby requiring his representative to
take annual leave in order to effectively represent the complainant.
(3) in the instant complaint, EEO personnel interfered and harassed
the complainant's representative by failing to recognize him as his
representative; and
(4) the EEO Counselor interviewed the complainant's representative
concerning the instant complaint, after the Notice of Final Interview
was mailed to the complainant.
On August 29 2001, the agency issued a decision dismissing claim (2)
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The
agency stated that complainant was not aggrieved by the alleged incident.
Further, the agency determined that complainant's representative may
have been aggrieved by having to take annual leave as a result of the
issuance of the memorandum, but complainant failed to state a claim
because he has not been aggrieved by the alleged agency action.
The agency also dismissed claims (1) through (4) pursuant to 29 C.F.R. �
1614.107(a)(8).
The record in this case contains an agency memorandum to complainant's
representative, dated May 23, 2001. Therein, the agency advised
the representative to attend all mandatory meetings relating to his
position as Field Analysis Specialist; and that he is to reschedule all
conflicting appointments. The agency noted that during the current
fiscal year, the representative requested 169.5 hours to work on EEO
complaints, other than his own. The agency determined that the time that
the representative spends on non-Field Analysis Specialist matters is
having a substantial negative impact on his performance of those duties.
Finally, the agency advised the representative that his overall hours
of official time relating to the representation of others in EEO matters
is limited to ten percent of his duty hours per month.
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).
Regarding claim (2), the Commission determines that the agency
properly dismissed it for failure to state a claim. The record shows
that complainant alleged no personal harm, only harm suffered by his
representative. To the extent that the matter raised in claim (2)
addresses alleged discrimination regarding prior complaints filed by
complainant, the Commission determines that the claim was properly
dismissed on the grounds that it alleges dissatisfaction with the
processing of a prior complaint.
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that the agency shall
dismiss a complaint that alleges dissatisfaction with the processing of
a previously filed complaint.
Regarding claim (1), the Commission determines that the matter raised
therein concerns the purportedly improper and discriminatory handling
of his previous EEO complaint (TD Case No. 01-4120). Therefore, under
the Commission's regulations, the agency properly dismissed claim (1)
for improper processing.
While the agency dismissed claims (3) and (4) pursuant to 29 C.F.R. �
1614.107(a)(8), which states that an agency shall dismiss a complaint
that alleges dissatisfaction with the processing of a previously filed
complaint, the Commission determines that claims (3) and (4) are more
properly analyzed in terms of whether they state a claim. Here, we find
that complainant alleges that the agency interfered and harassed his
representative by failing to recognize him as his representative in the
present case. The Commission determines that complainant was not rendered
aggrieved due to the alleged actions addressed in claims (3) and (4).
Accordingly, the agency's final decision dismissing the complaint is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
September 11, 2002
__________________
Date