01975140
03-24-1999
David L. Odom, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
David L. Odom v. Department of the Army
01975140
March 24, 1999
David L. Odom, )
Appellant, )
)
)
v. ) Appeal No. 01975140
) Agency No. BEFLF09612G0310
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
Appellant filed the instant appeal from a decision dated June 3, 1997,
dismissing appellant's complaint pursuant to 29 C.F.R. �1614.106(a).<1>
Appellant is a GS-12 Information Management Specialist in the Directorate
of Human Resources, for the Headquarters, U.S. Army Corps of Engineers
(HQUSACE). Appellant alleged in his complaint that he was discriminated
against based on race, color, physical disability, sex and reprisal when
on November 18, 1996, appellant's pay was garnished for an outstanding
debt without any notification by HQUSACE.
The agency stated in its June 3, 1997, decision that the Department
of Defense Finance Accounting Service-Cleveland Center (DFAS-CL) has
jurisdiction over this claim and not the agency per the Department of
Defense (DOD) Financial Management Regulation, Volume 8, Chapter 04,
Section 041202. This regulation states that all orders for commercial
debts shall be sent to DFAS-CL for processing and that DFAS-CL would
input all garnishment deduction information.
An agency shall accept a complaint from any aggrieved employee 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 has held
that while the regulations do not define the term "aggrieved employee,"
the United States Supreme Court has interpreted it to mean an employee
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 state a
claim under our regulations, an employee must allege and show an injury
in fact." Id. (citing Hackett v. McGuire Bros., 445 F.2d 447 (3rd
Cir. 1971)). "Specifically, an employee must allege and show a �direct,
personal deprivation at the hands of the employer,' that is, present
and unresolved harm or loss affecting a term, condition or privilege
of his/her employment." Id. (citing Hammonds v. United States Postal
Service, EEOC Request No. 05900863 (Oct. 31, 1990); Taylor v. United
States Postal Service, EEOC Request No. 05900367 (June 2, 1990)).
The Commission finds that the appellant is not an aggrieved individual.
Appellant states on appeal, "[c]omplainant understands and does not
contest the fact that the garnishment order was implemented by the
Department of Defense Finance Accounting System." Thus, appellant
acknowledges that the responsibility for garnishment lies with
the DFAS-CL and not within the HQUSACE. Furthermore, appellant's
garnishment was issued through a proper court order through DFAS-CL.
Appellant acknowledges this by stating, "complainant's allegation is that
the agency should have notified him about the proposed garnishment, not
that the agency had any power over the garnishment itself." Therefore,
the appellant does not dispute the issuance of the garnishment order.
Instead, the appellant disputes his lack of notification of the
garnishment by the agency. However, per these admissions, appellant
is not an aggrieved individual as defined under the law. The lack of
notification of the agency is not sufficient to establish that appellant
was aggrieved since appellant has not alleged a personal harm that can
be remedied by the Commission.
The Commission notes that allegations in the instant complaint can be
interpreted as a request for compensatory damages. "Even if we assume
that appellant's statement of alleged harm is a request for damages, we
find that when, as in the instant case, an allegation fails to render a
complainant aggrieved, it will not be converted into a processable claim
merely because the complainant has requested specific relief." Larotonda
v. United States Postal Service, EEOC Appeal No. 01933846 (Mar. 11, 1994).
Therefore, appellant's request for compensatory damages does not alter our
finding. Accordingly, the agency's final decision dismissing appellant's
complaint 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. 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:
March 24, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The June 3, 1997, agency decision included a second allegation,
concerning LWOP, that was dismissed pursuant to 29 C.F.R. �1614.107(b)(1)
which states that an agency may dismiss a complaint that raises an
issue that has not been brought to the attention of an EEO Counselor.
On appeal appellant stated, "[t]he complainant was not intending for
the LWOP to be a separate allegation. Rather, he referred to it as
relevant background. Accordingly, complainant will not be pursuing the
issue of the agency's dismissal of the second allegation." Therefore,
since appellant is not challenging the agency's dismissal of the second
allegation the Commission will not address this allegation.