01A15008_r
02-04-2003
Tommy R. Beck, Complainant, v. Kenneth W. Dam, Acting Secretary, Department of the Treasury, Agency.
Tommy R. Beck v. Department of the Treasury
01A15008
February 4, 2003
.
Tommy R. Beck,
Complainant,
v.
Kenneth W. Dam,
Acting Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A15008
Agency No. 99-2044R
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 23, 2001, 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.
In his complaint, complainant alleged that he was subjected to
discrimination based on reprisal when he failed to make the Best-Qualified
List, which resulted in him not being considered for selection to the
position of Plate Printer Apprentice, WE4454-UNCL, Vacancy Announcement
Number 98-15SRP.
In a final decision dated January 22, 1999, the agency dismissed
the complaint for failure to state a claim. The agency determined
that complainant's application for the position at issue was properly
reviewed under the selection process, and that he was not harmed when the
selecting official determined that he was not among the best qualified
applicants. The agency further determined that complainant was not harmed
because the vacancy announcement at issue was canceled due to a hiring
freeze, and that the offers made to all four selectees were rescinded.
Furthermore, the agency determined that complainant had not engaged in
prior protected EEO activity and so did not state an actionable claim
based on reprisal. On appeal, the Commission reversed the agency's
dismissal, and remanded the claims for further processing. See Beck
v. Department of the Treasury, EEOC Appeal No. 01992979 (May 4, 2001).
The Commission determined that the agency improperly addressed the merits
of the claim without the benefit of an investigation. The Commission
further determined that complainant was clearly rendered �aggrieved�
when he was not selected for the promotion at issue. Moreover, the
Commission found that the agency provided no evidence to demonstrate
that complainant improperly filed his complaint on the basis of reprisal.
The agency issued a new final decision on July 23, 2001, which is
the subject of the present appeal, dismissing complainant's complaint
pursuant to the regulation set forth at 29 C.F.R. � 1614.107(a)(1), for
failure to state a claim. The agency noted that by letter dated July 10,
2001, complainant responded to its acceptance letter and indicated that
he was not alleging reprisal for prior EEO complaint activity, but was
alleging reprisal due to his grievance that was filed against the agency.
Further, the agency stated that in his letter dated February 24, 1999,
to the Commission, complainant stated that he had not filed any other
EEO complaints previously and provided a copy of the disciplinary action
that was taken against him and a copy of the grievance that was filed.
The grievance does not raise any issues of discrimination. Finally,
the agency concluded that since there is no evidence that complainant
has previously participated in the EEO complaints process, it dismissed
complainant's complaint for failure to state a claim.
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).
EEOC Regulation 29 C.F.R. � 1614.101(b) provides that no person shall be
subject to retaliation for opposing any practice made unlawful by Title
VII, the ADEA, the Equal Pay Act (EPA), or the Rehabilitation Act, or
for participating in any stage of administrative or judicial proceedings
under those statutes.
In the instant case, it is clear from the record that complainant has not
previously participated in the EEO complaint process. The Commission
notes that the record in this case contains complainant's letter dated
February 24, 1999, to the Commission. Therein, complainant stated �I
did not file any other EEO complaints previously, because as you are well
aware, it is hard to prove retaliation.� Moreover, the record contains
complainant's letter dated July 10, 2001, to the agency. Therein,
complainant stated �One of my disagreements is with the part of the
statement that reads �as reprisal for his prior EEO complaint activity.'
I am disagreeing with this part of the statement. I have stated before I
believe this is a reprisal due to a previous �grievance and disciplinary
action' taken against me, not an EEO complaint activity." (emphasis in
the original). Finally, the Commission notes that a copy of the grievance
contained in the record raises no issues of discrimination. Therefore,
the Commission finds that the agency properly dismissed the complaint
for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
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
February 4, 2003
__________________
Date