01a50334
03-15-2005
Edward C. Perrine, Complainant, v. Peter B. Teets, Acting Secretary, Department of the Air Force, Agency.
Edward C. Perrine v. Department of the Air Force
01A50334
03-15-05
.
Edward C. Perrine,
Complainant,
v.
Peter B. Teets,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A50334
Agency Nos. 7K0J03003(F04); 7K0J03009(F04)
Hearing Nos. 150-2004-00196x; 150-2004-00161x
DECISION
Edward C. Perrine (complainant) filed an appeal from the September
9, 2004, final decision of the Department of the Air Force (agency)
implementing the decision of the Administrative Judge (AJ), which
dismissed the above-referenced complaints. The appeal is timely filed
(see 29 C.F.R. � 1614.402(a)) and is accepted in accordance with 29
C.F.R. � 1614.405.
In Complaint No. 7K0J03003, complainant claimed discrimination based on
reprisal when the agency made adverse entries in the 971 record of his
representative (R1), "chilling" him from using R1 as his representative.
The AJ found that complainant failed to state a claim, in that, the
harm alleged was directed at the representative and not complainant.
The Commission's regulations require an agency to dismiss a complaint
that fails to state a claim within the meaning of 29 C.F.R. �1614.103.
29 C.F.R. � 1614.107(a)(1). The Commission's federal sector case
precedent defines 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). Complainant has not shown that
he suffered a harm or loss by the agency's action.
In Complaint No. 7K0J03009, complainant claimed discrimination based on
reprisal with regard to actions by the agency's EEO office concerning
the above complaint. The AJ determined that, since these issues raised
dissatisfaction with the processing of a prior complaint, they should have
been raised in conjunction with that complaint and are properly dismissed
by the agency. 29 C.F.R. � 1614.107(a)(8). The Commission's Management
Directive describes the procedure for addressing dissatisfaction with
the agency's EEO process. See EEOC Management Directive 110 (November 9,
1999) (MD-110), Chapter 5, � IV.D. (5-25). Initially, a complainant is
required to bring his/her dissatisfaction to the attention of the agency
official responsible for the quality of complaints processing and not by
filing a separate complaint; if the matter is not resolved informally, the
complainant may raise his/her dissatisfaction with the AJ, if a hearing
is requested, or on appeal to the Office of Federal Operations. Ibid.
Since complainant did not attempt to informally resolve his concerns
by addressing the EEO office, complainant's complaint is properly
dismissed.<1>
After a review of the record, including statements and arguments not
addressed herein, based on the reasons above, we find that the agency
properly dismissed the complaints.
CONCLUSION
Accordingly, the agency's decision was proper and 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
_____03-15-05_____________
Date
1We note that his dissatisfaction with the EEO office went to the
provision of information about a third complaint to the investigator.
While such information may have been necessary to establish his
claim of reprisal, nevertheless, he has sought to consolidate all
pending complaints pursuant to EEOC Regulation 29 C.F.R. � 1614.606.
This provision, however, usually includes complaints that are at the same
procedural steps in the administrative process. See MD-110, Chapter 5,
�III.C. (5-13).