01A21664
06-19-2002
John G. Gowan, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
John G. Gowan v. Department of the Air Force
01A21664
06-19-02
.
John G. Gowan,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A21664
Agency No. 8Y1M02005
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final agency
decision 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. The final agency decision was dated January
14, 2002 and received by complainant on January 15, 2002. The appeal was
postmarked January 22, 2002. Accordingly, the appeal is timely and the
Commission hereby accepts it in accordance with 29 C.F.R. �1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
claim for failure to state a claim.
BACKGROUND
In a complaint dated December 17, 2001, complainant alleged that he
was subjected to discrimination on the basis of reprisal for prior
EEO activity when he was the subject of disparaging remarks by an Air
Force Employee Management Relations Clerk concerning his work for
an organization which was representing an Air Force employee in an
EEO matter.
The complainant specifically claims that an act of reprisal and
retaliation was taken against him by the Management Official (MO),
an Employee Management Relations Clerk, at the Department of Air
Force at Kirtland AFB. The complainant claims that as a result of his
representation of an Air Force employee, the MO made a statement in
writing describing the complainant's actions as using �Gestapo� tactics
and his organization as a �hate group.� Complainant contends he reported
these statement to officials at Kirtland AFB and no action was taken.
Complainant claims he has been harmed by having his name discredited
and damaging his reputation as an EEO representative.
On January 14, 2002, the Department of the Air Force issued a FAD
dismissing complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)
(1) for failure to state a claim. Specifically, the agency stated that
the complainant was neither an agency employee who suffered a present
harm or loss with respect to the terms, conditions, or privileges of
employment for which there is a remedy, nor was the complainant an
applicant for employment.
On appeal, complainant cites 29 C.F.R. � 1614.101 as the reason why his
claim was improperly dismissed.
ANALYSIS AND FINDINGS
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).
The only proper questions in determining whether an allegation is
within the purview of the EEO process are (1) whether the complainant
is an aggrieved employee and (2) whether he has alleged employment
discrimination covered by the EEO statutes. An employee is �aggrieved�
if he has suffered a direct and personal deprivation at the hands of the
employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133
(March 2, 1990). Upon review, we find that the agency properly dismissed
complainant's complaint. Complainant is not one of a group of agency
employees, former employees, or applicants for employment as is required
by 29 C.F.R. �1614.103(c). While the complainant was a uniformed member
of the Air Force at one time, the Commission regulations concerning
former employees do not apply to uniformed members of the military.
29 C.F.R. � 1614.103(d)(1); see Gowan v. Department of the Air Force,
EEOC Request No. 05890222 (July 14, 1989).
In addition, with regard to complainant's allegations regarding the
agency's alleged processing of his client's complaints via disparaging
remarks against him, we find that such allegations are best addressed
within the confines of the complaint raised by the individual whom
complainant is representing, rather than as a complaint filed by
complainant in his own name. 29 C.F.R. �1614.107(8); EEOC - Management
Directive (MD)110, 5-25 (Nov. 9, 1999). The Commission finds that the
complaint fails to state a claim under the EEOC regulations because
complainant failed to show that he suffered harm or loss with respect to
a term, condition, or privilege of employment for which there is a remedy.
See Diaz, supra.
Accordingly, the agency's final decision dismissing complainant's
complaint 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
___06-19-02_______________
Date