Estate of Donnie Powell, Complainant,v.Steven R. Cohen, Acting Director, Office of Personnel Management, Agency.

Equal Employment Opportunity CommissionFeb 6, 2001
01991835 (E.E.O.C. Feb. 6, 2001)

01991835

02-06-2001

Estate of Donnie Powell, Complainant, v. Steven R. Cohen, Acting Director, Office of Personnel Management, Agency.


Estate of Donnie Powell v. Office of Personnel Management

01991835

February 6, 2001

.

Estate of Donnie Powell,

Complainant,

v.

Steven R. Cohen,

Acting Director,

Office of Personnel Management,

Agency.

Appeal No. 01991835

Agency No. OPMEEO9831

DECISION

Upon review, the Commission finds that the agency's decision dated

December 4, 1998, dismissing complainant's complaint for failure

to state a claim, is proper pursuant to 29 C.F.R. � 1614.107(a)(1).

In the present case, the aggrieved employee died on March 19, 1998. The

employee's spouse, however, acting as his personal representative,

initiated contact with an EEO Counselor on April 9, 1998, and thereafter,

filed a formal EEO complaint on his behalf on June 24, 1998.

The Commission finds, that in order to establish standing initially

under the regulations, a complainant must be either an employee of, or

an applicant for employment with, the agency against which the claims of

discrimination are raised. While we recognize that a federal employee's

EEO complaint survives the death of the complainant in certain instances,

the complaint in this case was not initiated by the aggrieved employee but

by his estate. See Estate of Doris B. Katz v. Department of Agriculture,

EEOC Appeal No. 01976392 (June 5, 1998), request for reconsideration

denied, EEOC Request No. 05980947 (October 18, 2000). Accordingly,

complainant's spouse, as complainant's personal representative, does

not have standing to initiate the EEO process on behalf of her deceased

husband. Therefore, the instant complaint fails to state a claim and

was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).

Accordingly, the agency's decision dismissing complainant's complaint

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

February 6, 2001

__________________

Date