Edward C. Perrine, Complainant,v.Peter B. Teets, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMar 15, 2005
01a50334 (E.E.O.C. Mar. 15, 2005)

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).