01a14026_r
01-22-2003
Weldon W. Woodward, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Weldon W. Woodward v. Department of the Treasury
01A14026
January 22, 2003
.
Weldon W. Woodward,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A14026
Agency No. 01-4210
DECISION
Upon review, the Commission finds that the agency's decision dated June
7, 2001, dismissing complainant's complaint for failure to state a claim
is proper pursuant to 29 C.F.R. � 1614.107(a)(1). In his complaint,
dated May 8, 2001, complainant, a former agency employee, alleged that
an identified agency manager issued a �Do Not Re-hire� order along with
various unit meetings and/or actions which included IBM-Microsoft Windows
NT security blocks, i.e., �Employee Access Denied� in regard to VA POMS
inventory. Complainant also alleged that the foregoing incident caused
his resignation from his position at the Department of Veterans Affairs
(VA) on March 29, 2001.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that prior to a
request for a hearing in a case, the agency shall dismiss an entire
complaint that fails to state a claim pursuant to 29 C.F.R. � 1614.103.
In order to establish standing initially under 29 C.F.R. � 1614.103,
a complainant must be either an employee or an applicant for employment
of the agency against which the claims of discrimination are raised.
In addition, the claims must concern an employment policy or practice
which affects the individual in his/her capacity as an employee or
applicant for employment. The agency shall accept a complaint from
any aggrieved employee or applicant for employment who believes that
he/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 and .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).
After a review of the complaint, including the EEO Counselor's Report,
the Commission finds that complainant was clearly alleging the claim of
his constructive discharge from the VA. Since the alleged incident does
not involve the Department of the Treasury's action (the named agency
this complaint was filed with), the Commission finds that it fails to
state a claim. With regard to the �Do Not Re-hire� order, it is noted
that complainant previously raised the same issue in his prior complaint,
Agency No. 01-4038, which had previously been decided by the Department
of the Treasury.<1>
With regard to the denial of complainant's access to a computer, which
allegedly occurred on March 29, 2001, the Commission finds that it
fails to state a claim because complainant has failed to show that the
alleged incident actually occurred. The record indicates that the alleged
discriminating official in the Department of the Treasury indicated that
she did not take such action regarding the �computer block,� did not know
what such a computer block was, and did not know how to take such action.
Because complainant has not shown that the incident regarding the computer
block occurred, we find that he is not aggrieved and that such a claim
was properly dismissed for failure to state a claim.
Accordingly, the agency's decision dismissing the 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
January 22, 2003
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Complainant appealed the agency's final action and this matter is
pending before the Commission under EEOC Appeal No. 01A20842.