05960761
10-08-1998
Robert W. Wildberger, Appellant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.
Robert W. Wildberger v. Small Business Administration
05960761
October 8, 1998
Robert W. Wildberger, )
Appellant, )
) Request No. 05960761
v. ) Appeal No. 01951895;
) 01952931
) Agency Nos. 05-92-325;
Aida Alvarez, ) 04-94-424
Administrator, )
Small Business Administration, )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On August 7, 1996, Robert W. Wildberger (hereinafter referred to
as appellant) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decisions
in Robert W. Wildberger v. Philip Lader, Administrator, Small
Business Administration, EEOC Appeal No. 01951895 (July 3, 1996), and
Robert W. Wildberger v. Philip Lader, Administrator, Small Business
Administration, EEOC Appeal No. 01952931 (July 1, 1996). Appellant
received the decisions on August 8, 1996. EEOC regulations provide
that the Commissioners may, in their discretion, reconsider any previous
decision. 29 C.F.R. �1614.407(a). The party requesting reconsideration
must submit written argument or evidence which tends to establish one
or more of the following three criteria: new and material evidence
is available that was not readily available when the previous decision
was issued, 29 C.F.R. �1614.407(c)(1); the previous decision involved
an erroneous interpretation of law, regulation or material fact,
or misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth herein, the appellant's request is denied.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed the
final decision of the agency to dismiss allegations in his complaints.
BACKGROUND
Appellant filed formal complaints on May 27, 1992 (Complaint 1), and
April 14, 1994 (Complaint 2), alleging discrimination on the bases
of color (white), sex, and reprisal, with regard to various terms
and conditions of his work. The agency issued final agency decisions
(FAD), accepting eight allegations and dismissing 28 allegations.<1>
The previous decisions affirmed the agency's actions, and appellant has
filed the instant request for reconsideration (RTR) with regard to 10
of the allegations.
Appellant was employed as a Program Analyst, GS-13, from June 1980,
through September 1992, when he was terminated for misconduct and poor
performance.<2> Appellant challenges the agency's dismissal of the
following allegations:
Complaint 1
(13) denied official time to represent employees;
(19) restricting appellant's use of annual leave; and
(21) applying a restrictive procedure for official time.
Complaint 2
(1) denied him the right to represent an employee in an EEO matter
pending before the agency;
(5) encouraged an EEO official to discourage and obstruct his
representational activity;
(6) obstructed his right to official time for EEO matters;
(7) interfered with his attempts to represent an agency employee prior
to August 3, 1992;
(8) continued to interfere with his right to represent an agency
employee;
(9) interfered with his right to represent other current and former
agency employees; and
(12) obstructed and prevented him from representing current and former
agency employees in EEO complaints and other proceedings against the
agency.
As to Complaint 1, the previous decision affirmed the dismissal of
allegations (13), (19), and (21) as moot, finding that appellant's
termination constituted an interim event and completely eliminated the
possibility that the alleged discrimination would recur. In addition,
the decision found that allegation (13) was properly dismissed for
failure to state a claim, since the rights asserted by appellant were
the EEO rights of others.
With regard to Complaint 2, the previous decision affirmed the agency's
dismissal of allegations (1), (5), (7), (8), (9), and (12) for failure to
state a claim, since appellant, as the representative, lacked standing to
assert these rights. With regard to allegation (6), the decision noted
that, to the extent that appellant claimed official time for others,
his allegation is properly dismissed for failure to state a claim,
and, if he asserted right to official time for his personal complaints,
he failed to identify an injury prior to his termination for which he
timely contacted an EEO counselor.
In his RTR, appellant argues that his termination is in litigation
before the United States Court of Appeals for the Federal Circuit and
should not be dismissed. Next, he contends that his injury in Complaint
2(6) was clearly stated, that is, the agency interfered with his use
of official time. Finally, appellant argues that he has a right to
represent employees before the agency through the employees' right to
representation and that he is aggrieved, since his representation of
others is protected activity. In support of his argument, appellant
cites two cases issued by the Office of Federal Operations in 1986.
Appellant has submitted material from other litigation pending in other
forums, which are not directly related to the matter before us.
In its comments, the agency argues that appellant's RTR does not meet
the criteria of 29 C.F.R. �1614.407(c). Also, the agency contended that
appellant's legal citations were not pertinent to the questions at issue
herein, since neither case provided a basis for an EEO representative
to assert EEO rights independent of a complainant.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence that tends to establish at least one of the criteria of 29
C.F.R. �1614.407(c). Having reviewed the record and submissions of the
parties, we find that appellant's request fails to meet the criteria of
29 C.F.R. �1614.407(c).
Complaint 1 [(13), (19), and (21)]
EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal of a
complaint, or portions thereof, when the issue raised therein has become
moot, that is, where there is no reasonable expectation that the alleged
violation will recur, and interim relief or events have completely and
irrevocably eradicated the effects of the alleged violation. See County
of Los Angeles v. Davis, 440 U.S. 625 (1979).
Appellant argues that because his termination is on appeal in federal
court, these allegations should not be dismissed as moot. Appellant has
not shown, however, that there is any likelihood that his litigation
will conclude in his favor. We find that the final decision of the MSPB
is sufficient to render the issue of appellant's termination resolved.
Fisher v. Department of Defense, EEOC Request No. 05950153 (August 15,
1996). Appellant's suggestion that these matters be held in abeyance
pending resolution of his litigation in other forums is not contemplated
by our regulations.
With regard to these allegations, we find that appellant's termination
has intervened and eliminated the effects of the alleged discrimination.
For these reasons, we find that these allegations were properly dismissed
as moot. 29 C.F.R. �1614.107(e).
Complaint 2 [(1), (5), (6), (7), (8), (9), and (12)]
The Commission's regulations require an agency to accept a complaint
from any aggrieved employee or applicant for employment who believes
that s/he 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; �1614.106(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).
Here, appellant is asserting EEO rights as a representative for
other employees. The Commission has considered this question and
determined that the agency was correct in finding that appellant was
not aggrieved. An agency is required to address EEO complaints only
when filed by an "aggrieved" person, that is, one who has suffered
direct, personal deprivation at the hands of the employer. See Paula
Quinones v. Department of Defense, EEOC Request No. 05920051 (March
12, 1992). The employer's act must have caused some concrete effect
on the complainant's employment status. Appellant's representation of
other employees in the agency's EEO processes is not sufficiently tied
to his employment status with the agency to state a claim. See Morman
v. Department of the Air Force, EEOC Appeal No. 01964629 (March 17,
1997). Finally, appellant's argument on RTR, that dismissal of his
claims would have a chilling effect in future EEO cases is speculative
and too attenuated to constitute a harm to appellant. Carlton v. USPS,
EEOC Request No. 05950160 (August 3, 1995).
Next, we address allegation (6) and note that appellant failed to clarify
whether this claim concerned his use of official time in representation of
other employees or for matters he filed on his own behalf. To the extent
that appellant alleged denial of official time in his representation
of others, as discussed, above, his allegation is properly dismissed
for failure to state a claim. If appellant was asserting his right to
official time for personal EEO matters, we find that he failed to identify
an injury prior to his termination for which he timely contacted an EEO
counselor.
For the above reasons, the Commission finds that appellant's request
does not meet the regulatory criteria of 29 C.F.R. �1614.407(c).
The Commission finds that appellant's request did not present any new
or material evidence or establish that the previous decisions' findings
were erroneous. Accordingly, the Commission denies appellant's request
to reconsider the previous decisions.
CONCLUSION
After a review of the appellant's request for reconsideration, the
agency's reply thereto, the previous decisions, and the entire record,
the Commission finds that the appellant's request fails to meet any of
the criteria of 29 C.F.R. �1614.407(c). It is therefore the decision
of the Commission to deny the appellant's request. The decisions in
EEOC Appeal No. 01951895 (July 3, 1996) and EEOC Appeal No. 01952931
(July 1, 1996) remain the Commission's final decisions. There is no
further right of administrative appeal on a decision of the Commission
on a Request for Reconsideration.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
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.
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 8, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat
1The agency accepted the following allegations: Complaint 1: allegations
(2), (3), (6), (12), (20), and (23) [FAD, December 14, 1994]; and,
Complaint 2: allegations (2) and (4) [FAD, April 14, 1994]. On February
29, 1996, the agency issued a final decision dismissing these allegations
pursuant to 29 C.F.R. �1614.107(g), which was affirmed on appeal. EEOC
Appeal No. 01963451 (January 27, 1997). Appellant's request for
reconsideration is under consideration by the Commission. See EEOC
Request No. 05970527.
2Appellant appealed his termination to the Merit Systems Protection Board
(MSPB), which was eventually sustained by the full Board. Wildberger
v. Small Business Administration, MSPB Docket No. DC0752930005-B-2 (March
6, 1996). Appellant was charged with misconduct while serving as union
president through March 1989, including appropriation of union funds
for personal use and misuse of government property, and poor performance.