01996419
06-02-2000
James F. Schaper, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
James F. Schaper, )
Complainant, )
)
v. ) Appeal No. 01996419
) Agency No. 99-3265
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
______________________________)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, 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.<1> The final agency
decision was dated July 22, 1999. The appeal was postmarked August
16, 1999. Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614. 402 (a)), and is accepted in accordance with 64 Fed. Reg. 37,644,
37, 659 (1999) (to be codified at 29 C.F.R. � 1614.405).
The issue on appeal is whether the agency properly dismissed complainant's
complaint on the grounds that he failed to state a claim.
On April 5, 1999, C-1 (White, male, over 40) was laterally reassigned
from his GS-12 position in the Loan Guaranty Service to a GS-12 position
on the Rating Board. According to the agency, he was reassigned because
the section he headed was moved to another state and he did not want to
relocate. On May 19, 1999, complainant (White, male, over 40), a GS-11,
Senior Veterans Claims Examiner in the Adjudication Service, contacted
an EEO counselor alleging that he was discriminated against on account
of his age and sex. He complained that C-1's reassignment affected
his chances for a future promotion to a position on the Rating Board.
Complainant, in expanding upon his claim, maintained that management,
in accordance with the Secretary of the agency's support of affirmative
employment programs, placed C-2 (Black, female, over 40) in a vacant
Loan Guarantee Officer position, which complainant argued displaced C-1
in the Loan Guarantee Service, and caused him to be reassigned to the
Rating Board.<2>
On June 10, 1999, complainant filed a complaint against the agency.
The agency issued a final decision on July 22, 1999, dismissing
complainant's complaint on the grounds that he failed to state a claim.
According to the agency, complainant did not establish that he suffered
a loss or harm with respect to a term, condition, or privilege of his
employment.
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified at 29 C.F.R. �
1614.103(a)) provides that an agency shall accept a complaint from any
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. 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified 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.
After a careful review of the record, we find that complainant failed to
state a claim. We find no persuasive evidence that complainant suffered
a present harm or loss regarding a term, condition, or privilege of
his employment. Complainant's concerns regarding his future promotion
opportunities are based on speculation with respect to what might happen
in the future, not on a present harm or loss.
Accordingly, we AFFIRM the agency's decision.
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:
_06-02-00_________ __________________________________
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.
2We note, however, the agency's assertion that C-2 becoming the new
Loan Officer had nothing to do with C-1's reassignment. C-2 applied
for and received the position of C-3, a former Loan Guarantee Officer.
C-1, according to the agency, was never in C-3's position.