01974562
10-30-1998
Lewis Claytor, Appellant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Lewis Claytor v. Department of Energy
01974562
October 30, 1998
Lewis Claytor, )
Appellant, )
)
v. ) Appeal No. 01974562
) Agency No. 97(99)HQ/EM
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency. )
_______________________________________)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning his equal
employment opportunity (EEO) complaint, which alleged discrimination
in violation of Title VII of the Civil Rights Act of 1964, 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. The appeal is
accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
ISSUE PRESENTED
The issue presented is whether the agency properly dismissed one issue
of appellant's complaint for failure to state a claim.
BACKGROUND
In a complaint dated February 19, 1997, appellant, then a Supervisory
Engineer, GS-15, alleged that the agency discriminated against him
on the bases of race (Black), color (black), age (54), and reprisal
(prior EEO activity): (1) by delaying the processing of his travel and
training requests, and by ordering that the calculation of his travel
expenses be changed from actual cost basis to per diem basis; and (2)
when a management official in the Office of Environmental Management
suggested in correspondence addressed to appellant that his travel might
be canceled due to budget problems, and commented that she hoped that
things were going well with appellant while he was serving a detail.
On April 22, 1997, the agency issued a final agency decision (FAD
1) dismissing the complaint for failure to state a claim. However,
FAD 1 addressed only Issue 2 of the complaint. On May 29, 1997, the
agency issued FAD 2 in which it rescinded FAD 1; accepted Issue 1 for
investigation; and again dismissed Issue 2 for failure to state a claim.
It is from this decision that appellant now appeals.
ANALYSIS AND FINDINGS
An agency must accept a complaint from any aggrieved employee who believes
that he or she has been discriminated against by that agency because
of race, color, religion, sex, national origin, age, or disability.
29 C.F.R. ��1614.103, 1614.106(a). While the Commission's regulations do
not define the term "aggrieved employee," the term has been interpreted
to mean an employee who suffers a present harm or loss with regard to a
term condition, or privilege of employment for which there is a remedy.
Diaz v. Dept. of the Air Force, EEOC Request No. 05931049 (April 21,
1994). In order to state a claim under the Commission's regulations,
"an employee must show an injury in fact." Id. (citing Hackett v. McGuire
Bros., 445 F.2d 447 (3d Cir. 1971). More specifically, "an employee
must allege and show 'a direct, personal deprivation at the hands of
the employer,' that is, a present and unresolved harm or loss affecting
a term, condition, or privilege of his/her employment." Id. (citing
Hammonds v. U.S. Postal Service, EEOC Request No. 05900863 (October 31,
1990); Taylor v. U.S. Postal Service, EEOC Request No. 05900367 (June 2,
1990). An agency must dismiss a complaint which fails to state a claim
pursuant to section 1614.103 or section 1614.106(a) of the Commission's
regulations. 29 C.F.R. �1614.107(a).
In the instant case, the agency properly dismissed Issue 2 for failure to
state a claim. The action complained of in Issue 2 was, in part, that a
manager commented to appellant that his travel might be canceled because
of budget problems. There is, however, no evidence that appellant's
travel in fact was canceled. Appellant argues on appeal that the prospect
that his travel might be canceled caused him to forgo career opportunities
requiring travel, but fails to provide specific information regarding
even a single incident where this occurred. Appellant also argues on
appeal that uncertainty about his travel budget caused him anxiety,
which could be construed as a claim for compensatory damages. However,
the Commission has held that where, as here, an allegation fails to
render a complainant aggrieved, a prayer for compensatory damages will
not serve to render the complainant aggrieved. E.g., Girard v. Dept. of
the Treasury, EEOC Request No. 05940379 (September 9, 1994).
The second part of Issue 2 was that the same manager commented that
she hoped things were going well with appellant while he was serving
a detail. There is nothing about this comment on its face which
could be construed as injurious. Appellant stated during counseling
that he felt this comment was the manager's way of telling him not to
return to the position he had occupied prior to his detail. Even if
this interpretation were considered reasonable, the comment was not
accompanied by any concrete action. The Commission has held that a
remark or comment, unaccompanied by concrete action, is not a direct
and personal deprivation sufficient to render an individual aggrieved.
Gens v. Department of Defense, EEOC Request No. 05910837 (January 31,
1992); Fuller v. U.S. Postal Service, EEOC Request No. 05910324 (May 2,
1991) (the mere verbal exchange between an appellant and his supervisor,
without some showing of injury in fact, does not show that appellant
is aggrieved); Simon v. U.S. Postal Service, EEOC Request No. 05900866
(October 3, 1990) (citing McCann v. U.S. Postal Service, EEOC Request
No. 05880867 (January 27, 1989)).
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if 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. �l6l4.604(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. 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:
Oct. 30, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations