01981898
03-12-1999
Charles Woods, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency
Charles Woods, )
Appellant, )
) Appeal No. 01981898
v. ) Agency No. GA-98-006
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final agency decision was dated December
15, 1997, and received by appellant on December 16, 1997. The appeal
was postmarked January 10, 1998. Accordingly, the appeal is timely
(see 29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC
Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
reprisal claim for failure to state a claim.
BACKGROUND
Appellant filed a formal complaint of discrimination on November 13,
1997, alleging discrimination on the basis of reprisal when, on July 28,
1997, his primary and secondary supervisors entered his cubicle and had
a discussion about moving his clerk to another work area, but did not
acknowledge him or include him in the conversation. In its final agency
decision, the agency dismissed appellant's reprisal claim on the grounds
that he had failed to state a claim for which relief could be granted.
Specifically, the agency stated that he had failed to allege that he
had suffered any personal loss or harm with respect to a term, condition
or privilege of employment because of the alleged discriminatory event.
This appeal followed.
In the statement supporting his appeal, appellant's attorney argues
that if the Equal Employment Manager for the agency had allowed
this complaint of reprisal to be consolidated with an earlier filed
complaint of reprisal, instead of requiring it to be filed separately,
the appellant would be able to establish a "course of ongoing reprisal
conduct" by appellant's secondary supervisor. He requests that the
Commission order the agency to consolidate the instant complaint with
the one earlier filed. The agency has responded to this by arguing that
the facts here do not meet the requirements for being characterized as
a "continuing violation," because the complaint was "rejected not for
timeliness but for merit."
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency
shall dismiss a complaint which fails to state a claim pursuant to 29
C.F.R. �1614.103. 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,
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 (Apr. 21, 1994). To establish that he is an
"aggrieved employee" and therefore state a claim under the regulations,
a complainant must allege that he was injured in fact.
In this case, appellant fails to show how the discussion held by
his supervisors at or near his cubicle (the actual location of the
discussion is a disputed fact) affected a term, condition, or privilege
of his employment. Appellant's attorney argues that he was denied both
a condition and a privilege of his employment status in that he was
"denied the use of his position and the privilege of his position to
participate in discussions that directly impacted his subordinates,"
discussions which he claims he normally would have been "intimately
involved in." A term, condition or privilege of employment has
been held in Commission decisions to include, inter alia, promotion,
demotion, discipline, reasonable accommodation, appraisals, awards,
training, benefits, assignments, overtime, leave, tours of duty, etc.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). It is the view of the Commission that a failure to be included in
an informal discussion about where other personnel will potentially be
moved to does not rise to the level of a harm or loss with respect to a
term, condition or privilege of employment such that appellant would be
an aggrieved employee.<1> Consequently, appellant has failed to state
a claim and the agency properly dismissed his complaint on this basis.<2>
With regard to appellant's continuing violation argument, the Commission
has said that the continuing violation doctrine is a theory used by
a complainant when the timeliness of an EEO complaint is in question,
i.e., when at least one, but not all, of a series of allegations occurred
within the limitation period preceding the initial EEO counselor contact.
See United Air Lines v. Evans, 431 U.S. 553 (1977), Rebo v. Department of
the Air Force, EEOC Request No. 05900290 (May 10, 1990). The continuing
violation doctrine is not, however, relevant to the legal issues of
whether appellant's complaint states a claim. See Meros v. Department
of Commerce, EEOC Request No. 05930760 (September 23, 1993).
Accordingly, the decision of the agency was proper and 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:
__03-12-99____________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations1 We decline to decide: 1) whether
appellant was or was not a Group Leader; 2) whether he did or did
not have supervisory authority over the clerical employee being
potentially moved; and 3) the actual location of the conversation
between the primary and secondary supervisors. These would be
facts to be decided by a fact finder if this case had alleged a
valid cause of action and were to go forward on the merits.
2 Since we have determined that appellant's complaint fails to state
a claim, we do not find it necessary to address the agency's alternate
grounds for dismissal, i.e., that his allegation is now moot.