Richard P. Washburn, Complainant,v.Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMar 30, 2001
01996722_r (E.E.O.C. Mar. 30, 2001)

01996722_r

03-30-2001

Richard P. Washburn, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.


Richard P. Washburn v. U.S. Department of the Army

01996722

March 30, 2001

.

Richard P. Washburn,

Complainant,

v.

Gregory R. Dahlberg,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01996722

Agency No. BKHBFO9804I0050

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated July 30, 1999, dismissing his complaint of unlawful

employment discrimination brought pursuant to Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.;

the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29

U.S.C. � 621 et seq.; and Section 501 of the Rehabilitation Act of 1973

(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission

accepts the appeal in accordance with 29 C.F.R. � 1614.405.<1>

According to the record, complainant contacted the agency's EEO office

on February 9, 1998, claiming that the agency eliminated his position

(GS-11 real estate appraiser) in order to place two co-workers into

two newly created real estate appraiser upward mobility positions,

pursuant to the terms of a settlement agreement. Complainant indicates

that the settlement agreement at issue was executed in April 1996 as

resolution of an EEO complaint filed in Federal district court against

the agency by the two named co-workers. Complaint contends that on

January 29, 1998, he discovered that the Federal district court did not

order the actions specified in the settlement agreement, and avers that

the settlement agreement should therefore be declared void because it

mandates prohibited personnel practices which ultimately resulted in

the discriminatory elimination of his position.

When EEO counseling did not successfully address his concerns, complainant

filed a formal EEO complaint on March 26, 1998, claiming discrimination on

the bases of sex, age, and disability regarding the placement of the two

co-workers in the upward mobility positions and the claimed elimination

of his position.

The agency dismissed the complaint for failure to state a claim,

finding that complainant's claim regarding the settlement agreement

fell outside the purview of EEO regulations. Alternatively, the agency

dismissed the complaint on the grounds of untimely EEO Counselor contact.

Specifically, the agency found that complainant had knowledge of the

purportedly discriminatory terms of the settlement agreement, as well as

the creation of the upward mobility positions, in the Spring of 1996, and

of the agency's draft re-organization plan (which purportedly eliminated

his position) in August 1997, such that his February 9, 1998 EEO contact

was beyond the forty-five (45) day time limitation.

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).

Although complainant claims that his position was eliminated, or

was slated to be eliminated, under the agency's re-organization plan,

purportedly because of the creation of the two upward mobility positions

under the settlement agreement at issue, the record reflects no change in

complainant's employment status, instead confirming that he continues to

encumber the same GS-11 real estate appraiser position. Moreover, review

of the record further fails to disclose a harm in a term, condition, or

privilege of complainant's employment sufficient to render him aggrieved

under the above stated legal standard.<2>

Accordingly, we conclude that the agency properly dismissed the instant

complaint on the grounds of failure to state a claim, and we AFFIRM

that determination.<3>

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

March 30, 2001

__________________

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

______________________________

1In a statement received at the Commission on May 31, 2000, complainant

requests that we review the April 28, 2000 decision of the Merits

System Protection Board (MSPB) which dismissed his individual-right-of

action appeal for lack of jurisdiction. In this action, it appears

that complainant alleged reprisal for whistleblowing activities,

including the claims of discrimination raised in the instant complaint.

Complainant contends that the instant complaint is a �mixed complaint�

and that the MSPB and agency erred in failing to inform him about forum

election and appeal rights to the Commission. However, we find that the

instant complaint does not set forth a claim which is appealable to the

MSPB, such that it is not a �mixed case� as defined under 29 C.F.R. �

1614.302. We will review complainant's appeal regarding the agency's

dismissal of the instant complaint. However, the MSPB's determination

is not appealable to the Commission, and the agency did not err when

it did not provide complainant with notice regarding forum election in

mixed case complaints.

2On appeal, complainant contends that the agency improperly processed

the 1999 performance appraisals, and subjected him to a hostile work

environment, especially concerning a July 26, 1999 e-mail communication.

Complainant refers to the latter matter as a �spin-off� complaint.

It does not appear that complainant discussed these matters with an

EEO Counselor. Complainant is advised that if he wishes to pursue these

matters through the EEO complaint process, he is advised to contact an

EEO Counselor thereon.

3Since we are affirming the agency's dismissal on the grounds of failure

to state a claim, we will not address the agency's alternative grounds

for dismissal.