01a01983
07-13-2000
Gerald Williams, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Gerald Williams, )
Complainant, )
)
v. ) Appeal No. 01A01983
F. Whitten Peters, ) Agency No. 9V1M00008
Secretary, )
Department of the Air Force, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an
agency decision dated December 7, 1999, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of physical disability (unspecified).<2>
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 64 Fed Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(a)(1)), for failure
to state a claim. The agency stated that complainant did not allege a
personal loss or harm to a term, condition, or privilege of employment
as a result of an agency action. Specifically, the agency claimed
that complainant failed to identify a concrete act alleged to be
discriminatory. The agency noted that in an April 27, 1999 letter,
complainant identified his complaint as a contractual issue regarding
a determination concerning complainant's tax liability for disability
benefits. The agency stated that complainant has not been employed
with the agency since May 1989, and noted that complainant has not
raised other charges concerning agency officials. The agency further
stated that complaints regarding complainant's status with the Office of
Personnel Management (OPM) or the Department of Labor (DOL) on a workers'
compensation claim are not within the jurisdiction of the EEO process.
In addition, the agency dismissed complainant's complaint pursuant to
the regulation set forth at 64 Fed Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(2)),
on the grounds of untimely EEO Counselor contact. The agency stated
that complainant resigned from the agency on May 12, 1989, and failed
to identify any acts of alleged discrimination that occurred within
forty-five (45) days of the date of contact with the EEO Counselor.
Finally, the agency dismissed complainant's complaint pursuant to the
regulation set forth at 64 Fed Reg. 37,644, 37,656 (1999)(to be codified
and hereinafter referred to as 29 C.F.R. � 1614.107(a)(7)), for failure
to cooperate. Specifically, the agency stated that complainant received
a final interview letter on October 15, 1999, which informed him of his
right to file a formal complainant and served as a proposal to dismiss
his complaint for failure to cooperate. The letter requested that
complainant provide relevant information concerning the specific acts
believed to be discriminatory and the basis for complainant's belief.
When complainant failed to provide the requested information, the agency
dismissed his complaint for failure to cooperate.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 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).
In the present case, we find that the agency properly dismissed
complainant's complaint for failure to state a claim. Complainant's
formal complaint and other correspondence with the agency indicate that
he is challenging the Office of Workers' Compensation Program (OWCP)
denial of Continuation of Pay (COP). Complainant's challenge of an OWCP
decision is not within the Commission's jurisdiction. The record reveals
that complainant has sent various correspondence to different agency and
government officials over a period of approximately nine years containing
allegations of obstruction of justice, Privacy Act violations, cruel
and unusual punishment, and Civil Rights Act violations. The Commission
finds that complainant's complaint is too vague to state a claim under
the EEOC regulations. EEOC Regulation 29 C.F.R. � 1614.106(c) provides
that a complaint must contain a statement that is sufficiently precise
to describe generally the actions(s) or practice(s) that form the basis
of the complaint. After reviewing the record in the present case, we
find that complainant failed to present a specific claim of employment
discrimination covered by EEOC regulations. Consequently, we find that
complainant's complaint was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(1), for failure to state a claim.
Accordingly, the agency's decision to dismiss complainant's complaint
for failure to state a claim was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 13, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.
2The record reveals that complainant sent a letter to the agency
postmarked October 27, 1999, in which he attempted to �appeal the
agency decision� in his case. The agency responded to this letter
by informing complainant that no formal complaint was ever filed in
his case. The agency treated complainant's �appeal� as a timely filed
formal complaint of discrimination. The Commission, therefore, treats
this October 27, 1999 letter as complainant's formal complaint.