01982285
03-10-1999
Donald Hunt, Appellant, v. Louis Caldera, Secretary, Department of the Army, National Guard Bureau, Agency.
Donald Hunt v. Department of the Army
01982285
March 10, 1999
Donald Hunt, )
Appellant, )
)
v. ) Appeal No. 01982285
) Agency No. T0158TXA0398H
Louis Caldera, )
Secretary, )
Department of the Army, )
National Guard Bureau, )
Agency. )
______________________________)
DECISION
I. INTRODUCTION
Appellant filed the instant timely appeal from the agency's decision
dated December 23, 1997, dismissing, on grounds of mootness, appellant's
allegation that had he had been discriminated against based on his
physical handicap when he was denied access to an EEO counselor.
The Commission finds that the allegation fails to state a claim and
properly was dismissed.
II. ISSUE
Whether the agency correctly decided that appellant's allegations based
on his having been denied access to an EEO counselor should be dismissed.
III. BACKGROUND
Appellant alleged in his complaint that the agency discriminated against
him on the the basis of physical handicap when 1) he was terminated from
his full time position; 2) he was denied the opportunity to see his own
doctor after being injured on the job; and 3) he was denied access to
an EEO counselor. The agency accepted the first two allegations for
investigation but dismissed the third on grounds of mootness.
Appellant states in his complaint that the denial of access to an EEO
counselor occurred following the agency's termination of his employment,
when, on September 30, 1997, he attempted to meet with an EEO counselor
with whom he had made an appointment. Appellant was prevented from
attending that meeting by his former superior who informed him that he
would not be allowed to meet with the EEO counselor because he was no
longer an employee of the agency.
Ultimately, through the intervention of another agency employee,
appellant was able to meet with an EEO counselor on November 7, 1997
and again on November 20, 1997. On December 9, 1997, appellant filed
the instant complaint.
IV. ANALYSIS AND FINDINGS
The Commission finds that appellant's allegation concerning the delay in
meeting with the EEO counselor fails to state a claim. As is well-settled,
a complainant must allege that because of the agency's conduct, he/she has
in fact suffered a personal loss or harm that affects a term, condition,
or privilege of employment.
See Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972). Here,
appellant asserts that the delay did "impact" him by deferring the
filing of his formal complaint by "over one and a half months." However,
he points to no concrete harm that resulted from that delay.
This case is distinguishable from the Commission's decision in Roberts
v. Department of the Treasury, EEOC Request No. 05940908 (June 2, 1995)
where it was found that the appellant's allegation that she had suffered
economic damages, including interest expenses, as a result of the agency's
delay in submitting her worker's compensation claim "represent[ed]
a present, direct harm for which relief is available under Title VII
of the Civil Rights Act." In the present case, appellant can make no
comparable claim. If appellant prevails on the remaining allegations of
his complaint, he can be fully compensated for all economic damages he
has suffered. The delay he encountered in meeting with an EEO Counselor
did not reduce the amount of damages that are potentially recoverable.
In the absence of a specific statement or claim of personal loss or
harm, the Commission finds that appellant is not an aggrieved person,
and that the allegation on appeal fails to state a claim. See Graham
v. U.S. Postal Service, EEOC Request No. 05931107 (February 17, 1994)
V. CONCLUSION
For the foregoing reasons, we 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 the 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. � 1614.604.
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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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.F.R.). 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:
March 10, 1999 ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations