01a51575
04-21-2005
Walter J. Benn, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Walter J. Benn v. Department of Veterans Affairs
01A51575
April 21, 2005
.
Walter J. Benn,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A51575
Agency No. 200J-0539-20044104021
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. In a complaint dated September 24, 2004, complainant
alleged that he was subjected to discrimination on the basis of reprisal
for prior EEO activity when he was not selected for the position of
Supply Technician, GS-2005-5/6/7.
The agency dismissed complainant's complaint because complainant had
alleged reprisal for filing a Merit Systems Protection Board (MSPB)
appeal. The agency stated that complainant had not previously been
involved in the EEO process and his MSPB appeal did not involve any
allegations of discrimination.
On appeal, complainant contends that he was discriminated against due
to his age and disability as well as retaliation. The agency makes no
contentions on appeal.
After a careful review of the record , we conclude that complainant
has not participated in protected activity prior to filing the instant
complaint, Agency No. 200J-0539-20044104021. A review of complainant's
MSPB appeal, dated March 24, 2004, reveals that the allegations raised
concerned his being disciplined for raising allegations of waste, fraud
and abuse, and he did not raise any claims of unlawful discrimination.
Complainant does not submit any evidence to show that he ever engaged
in activity protected under the statutes enforced by this Commission.
Accordingly, we find that the agency was correct in dismissing the claim.
In regard to complainant's contentions on appeal that he was discriminated
against on the bases of age and disability, a careful review of the record
reveals that at no point during the EEO counseling or in his complaint
did complainant indicate that he believed his age or disability motivated
the agency's action. While a complainant may amend his or her complaint
to add a basis at any point during the investigation, a complainant may
not add a basis on appeal. See Dragos v. United States Postal Service,
EEOC Request No. 05940563 (June 19, 1995). Therefore, after a careful
review of the record, including complainant's contentions on appeal,
the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision.
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
April 21, 2005
__________________
Date