01983393
03-28-1999
Walter C. Bright Jr., Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Walter C. Bright Jr. v. Department of Defense
01983393
March 28, 1999
Walter C. Bright Jr., )
Appellant, )
)
v. ) Appeal No. 01983393
) Agency No. DT-98-017
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
______________________________)
DECISION
On March 24, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated February 24, 1998, pertaining
to 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, appellant alleged that he was
subjected to discrimination on the basis of age (DOB 1/2/40) when his
supervisor (S1), believing that appellant would not receive a Notice of
Reduction in Force (RIF) because of his age and years of federal service,
advised him not to take a Voluntary Early Retirement Authority (VERA)
with the Voluntary Separation Incentive Pay (VSIP). Appellant asserted
that as a result of taking his S1's advice, appellant was ineligible
for the VERA and VSIP when, on March 10, 1997, he received a RIF notice.
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.107(b), for failure to initiate contact with an EEO
Counselor in a timely manner. Specifically, the agency determined that
appellant received S1's advice during the period when the VERA/VSIP
was available (November 1, 1996 through January 7, 1997), but did not
contact an EEO Counselor until September 19, 1997, beyond the forty-five
(45) day limitation period.
The Commission finds that dismissal of appellant's complaint is justified
pursuant to 29 C.F.R. �1614.107(a), for failure to state a claim.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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).
In the instant case, we find that the action about which appellant
complains, i.e., S1 advising him that he would likely not be affected by
the impending RIF and therefore need not take advantage of the VERA/VSIP,
does not constitute actionable harm under the EEOC regulations.
While we sympathize with appellant's unfortunate reliance on S1's
imprudent advice, there is no remedy available within the purview of
29 C.F.R. �1614 which would address appellant's concerns. See Moreno
v. Department of the Treasury, EEOC Request No. 05940139 (October 28,
1994). Absent available remedial relief under the EEOC regulations,
the complaint is properly dismissed pursuant to 29 C.F.R. �1614.107(a),
for failure to state a claim.
Accordingly, the agency's decision to dismiss appellant's complaint is
AFFIRMED for the reasons set forth herein.
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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
Mat 28, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations