01A20649_r
04-25-2002
Ison Richwell, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Ison Richwell v. Department of Veterans Affairs
01A20649
April 25, 2002
.
Ison Richwell,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A20649
Agency No. 200L-2055
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated September 28, 2001, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
In his complaint dated March 5, 2001, complainant alleged that he was
subjected to discrimination on the bases of age and in reprisal for
prior protected activity when:
The agency failed to select complainant for multiple positions, including:
Equal Employment Specialist, GS-260-7/9/11, Announcement Number 00-98;
Employee Relations Specialist, GS-230-9, Announcement Number 00-58A;
Supervisory Personnel Management Specialist, GS-201-12, Announcement
Number 00-74; Supervisory Labor Relations Specialist, GS-233-12,
Announcement Number 00-73; Position Classification Specialist, GS-221-11,
Announcement Number 00-75.
The agency's EEO personnel failed to cooperate in good faith with the
EEO Counselor in the investigation of complainant's complaint.
The agency dismissed complainant's complaint. Specifically, the agency
determined that complainant raised claim 1 in a prior EEO complaint and
that claim 2 was an impermissible complaint expressing dissatisfaction
with the EEO process.
Claim 1
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
The record reveals that in a complaint dated September 25, 2000,
complainant alleged that the agency engaged in unlawful discrimination
when it failed to select him for five positions. The record further
reveals that complainant's instant complaint regards non selection for
the same five positions contained in his previous EEO complaint.<1>
Consequently, we find that the agency properly dismissed claim 1 as
stating the same matter contained in a previous EEO complaint.
Claim 2
The agency dismissed this claim pursuant to 29 C.F.R. � 1614.107(a)(8).
However, we determine that it is more properly analyzed in terms of
whether it states a claim.
The regulation set forth at 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 claim 2, complainant expresses dissatisfaction with the agency's
response to the EEO Counselor's investigation of the matters raised
in the instant complaint. We find that complainant did not identify
an injury to a term, condition, or privilege of his employment by the
agency action identified.
Accordingly, the Commission AFFIRMS the agency's dismissal of
complainant's complaint for the reasons set forth in this decision.
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
____April 25, 2002______________
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
_______________________
1The Commission notes that although complainant states in his formal
complaint that he has �submitted six applications� for agency positions,
the record reveals he only specified five positions with respect to
this claim.