01A21673_r
03-28-2002
Richard Holub, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Richard Holub v. Department of the Army
01A21673
March 28, 2002
.
Richard Holub,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A21673
Agency No. AWGRFO0112B0330
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated January 11, 2002, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of disability from 1996 through 1999, when
a federal employee exploited complainant for labor and money.
In its final decision, the agency dismissed complainant's complaint on the
grounds that complainant's October 18, 2001 initial EEO Counselor contact
was untimely. Further, the agency found that complainant's complaint
fails to state a claim because he is not an employee or applicant for
employment, but rather was an agency volunteer.
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).
The record reflects that complainant was a volunteer with the agency.
Only in a narrow set of circumstances, usually where the volunteer is
performing services for the agency as part of an educational program
and received remuneration, or where the volunteer service often leads to
regular employment has the Commission held that a volunteer is protected
by Title VII. See Phillips v. Department of Veterans Affairs, EEOC Appeal
No. 01893011 (September 13, 1989) (citing Pollack v. Rice University),
28 FEP Cases 1273 (S.D. Texas 1982) (court found that because service
for remuneration was incidental to scholastic program, plaintiff was a
student and not an employee).
In the instant case, the Commission determines that there is sufficient
evidence of record to support a determination that there was no
connection between volunteer work and employment. Therefore, we find
that the agency properly dismissed the complaint for failure to state
a claim. Accordingly, the agency's decision to dismiss the complaint
is AFFIRMED.<1>
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
march 28, 2002
__________________
Date
1Because we are affirming the agency's dismissal of complainant's
complaint on the grounds of failure to state a claim, we will not address
the agency's alternative grounds for dismissal.