Kevin A.v.Dep’t of Veterans Affairs

Equal Employment Opportunity Commission

Aug 13, 2020

EEOC Decision No. 2020002361 (E.E.O.C. Aug. 13, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Kevin A.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 2020002361

Agency No. 200I-0546-2019105316

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated January 22, 2020, 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a Grant Applicant at the
Agency’s VAMC facility in Miami, Florida.

On September 19, 2019, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of disability and reprisal when, on July 30, 2019, he was not
provided a mentor. Complainant stated that he needed a mentor to assist him with his application
for the VA Career Development Award-2 program. According to the EEO counselor’s report, the
Career Development Award Grant is a research grant, and Complainant sought a mentor prior to
the submission of his application.

The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state
a claim. The instant appeal followed.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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ANALYSIS AND FINDINGS

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). When the complainant does not allege he or she is aggrieved within the meaning
of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to
29 C.F.R. § 1614.107(a)(1).

Here, we concur with the Agency that Complainant failed to allege sufficient facts, which if proven
true and considered together, would establish that he suffered harm or loss with respect to a term,
condition, or privilege of federal employment for which there is a remedy. Complainant was
neither an employee of the Agency nor was he seeking employment. Rather, he was an applicant
for a research grant from the Agency. As such, Complainant does not have standing to file a claim
using the federal administrative EEO complaint process. See Shabbir v. NASA, EEOC Appeal No.
0120101368 (May 24, 2011). The complaint, as written, without more, simply does not state a
viable claim of discrimination or unlawful retaliation that can be addressed under 29 C.F.R. Part
1614.

Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015).
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All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal
Employment Opportunity Commission. Complainant’s request may be submitted via regular mail
to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington,
DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests.
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Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

August 13, 2020
Date