01a52159
05-20-2005
Kevin L Voigt, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, (Federal Bureau of Prisons) Agency.
Kevin L Voigt v. Department of Justice
01A52159
May 20, 2005
.
Kevin L Voigt,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons)
Agency.
Appeal No. 01A52159
Agency No. P-2005-0040
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 4, 2005, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his
complaint, complainant alleged that he was subjected to discrimination on
the basis of reprisal for prior EEO activity when on September 2, 2004,
complainant was notified that his position would be abolished by May 31,
2005 and that he is the only Assistant Safety Manager in the North Central
region to receive such notification. The agency dismissed complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(5).
EEOC Regulation 29 C.F.R. �1614.107(a)(5) provides that an agency shall
dismiss a complaint that alleges �that a proposal to take a personnel
action, or other preliminary step to taking a personnel action, is
discriminatory.� The Commission has held that proposed actions do not
create a direct and personal deprivation which would make the appellant
an �aggrieved' employee within the meaning of EEOC Regulations. Charles
v. Department of the Treasury, EEOC Request No. 05910190 (Feb. 25,
1991); Lewis v. Department of the Interior, EEOC Request No. 05900095
(Feb. 6, 1990). The record reveals that the agency issued complainant a
memorandum dated September 1, 2004. This memorandum indicated that the
abolishment of complainant's position will take place by approximately
May 31, 2005. To date, complainant has not been terminated or subjected
to a Reduction in Force (RIF), or any other personnel action. We agree
with the agency that the September 1, 2004 memorandum is a preliminary
step to taking a personnel action. Given that no formal personnel action
has taken place, the agency properly dismissed his complaint pursuant
to 29 C.F.R. � 1614.107(a)(5).
The Commission will not address complainant's settlement offer for
EEOC No. 260-2004-0015X, agency No. P-2004-0090 involving complainant's
selection to Safety Manager, as this matter has been processed in a
separate EEO Complaint. Accordingly, the agency's 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
May 20, 2005
__________________
Date