01984198_r
06-18-1999
Steven M. Adelson, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.
Steven M. Adelson, )
Appellant, )
) Appeal No. 01984198
v. ) Agency No. DFASDEDENV-98-020
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Finance and Accounting )
Service), )
Agency. )
)
DECISION
On April 30, 1998, appellant filed a timely appeal from an April 20,
1998 final agency decision which dismissed his complaint for failure
to state a claim, pursuant to 29 C.F.R. �1614.107(a).
In his March 17, 1998 complaint, appellant alleged that he was
discriminated against on the basis of reprisal when on February 27,
1997, the Defense Finance and Accounting Agency (DFAS) withheld funds
from his award of compensatory damages payment, including Federal taxes,
which he obtained as a prevailing party in an EEO complaint against
the Department of the Army. In dismissing the complaint, the agency
stated that appellant failed to state a claim for which the agency could
provide a remedy, noting that appellant was neither an employee nor an
applicant for employment with the agency. The agency also noted that
the compensatory damages payment resulted from a settlement agreement
between appellant and the Department of the Army and that DFAS served
only as the disbursing agent for the Department of the Army in issuing
the payment to appellant.
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal
of a complaint which fails to state a claim within the meaning of
29 C.F.R. �1614.103. In order to establish standing initially under
29 C.F.R. �1614.103, a complainant must be either an employee or an
applicant for employment of the agency against which the allegations
of discrimination are raised. In addition, EEOC Regulation 29
C.F.R. �01614.103(c) provides that within the covered departments,
agencies and units, Part 1614 applies to all employees and applicants
for employment and to all employment policies or practices affecting
employees or applicants for employment.
The record reveals that appellant was employed by the Department of
the Army (Army) until July 7, 1995. Appellant filed two discrimination
complaints against the Army. In an April 25, 1995 final agency decision
regarding the two EEO complaints, the Army determined that appellant was
discriminated against on the basis of his disability and concluded that
appellant was entitled to compensatory damages. Appellant was awarded
$50,663.86 in compensatory damages. In July 1995, after the issuance of
the Army's April 1995 final decision, appellant and the Army entered into
a settlement agreement which incorporated the April 1995 final decision.
Appellant subsequently notified the Army that management had failed to
pay compensatory damages in a timely manner. The Army issued a July 14,
1997 final decision in which it determined that appellant was paid the
compensatory damages, although he was paid late, and that the agency
responsible for the delay was the DFAS.
Appellant appealed the July 14, 1997 final agency decision to the
Commission. Adelson v. Department of the Army, EEOC Appeal No. 01976108
(May 20, 1998)(hereinafter, Adelson-1). In the Commission's decision in
Adelson-1, the Commission considered whether the Army was in noncompliance
of the Army's order finding discrimination because of the Army's delay in
paying compensatory damages in the amount of $50,663.83 to appellant.
The Commission noted that the compensatory damages payment was to
be implemented for the Army by DFAS. The Commission's decision in
Adelson-1 reflects that DFAS erroneously deducted taxes from appellant's
compensatory damages award but was directed by the Army in a March 1997
Memorandum to issue appellant the deducted amount. The Commission
concluded in Adelson-1 that the agency had cured its initial failure
to pay the full amount of compensatory damages, that the agency had
substantially complied with the order and that no corrective action
was necessary.
Upon review, the Commission finds that the agency's final decision
was proper. Appellant was neither an applicant for employment nor
an employee of the identified agency. Clearly, the party against
whom appellant had standing to file was the Department of the Army
and appellant has already availed himself of this course of action.
Accordingly, the agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
June 18, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations