0120073252
10-15-2007
Scott D. Rowe, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Scott D. Rowe,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120073252
Agency No. 076300079
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated June 20, 2007, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. 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 April 25, 2007,
complainant alleged that he was subjected to discrimination on the bases
of his veteran's status and reprisal when he was found not qualified for
the position of Assistant Regional Director in July 2006 and January
2007.
The Commission notes that complainant made it clear that he was alleging
discrimination based on his veteran's status. Complainant repeatedly
relied on his veteran's status as the reason he was passed over for
the positions. The Commission concludes that to the extent complainant
alleges he was denied rights due to his status as a disabled veteran,
complainant has failed to state a claim. The Commission has repeatedly
held that veteran preference or status is not a protected basis for filing
an EEO complaint and therefore such complaints are not within the purview
of EEOC Regulations. See Devereux v. United States Postal Service, EEOC
Request No. 05960869 n. 1. (April 24, 1997). Moreover, the Commission
does not have any part in the enforcement of or jurisdiction over
the Veterans Readjustment Act or Veterans Affirmative Action Program.
To the extent that complainant believes that the agency is treating
veterans or disabled veterans in a discriminatory manner, complainant
is advised to contact the Office of Federal Contract Compliance (OFCCP),
the agency charged with such enforcement. Further, complainant has not
shown that he previously engaged in any protected activity to support
his claim of reprisal.
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because complainant failed to show that he suffered harm
or loss with respect to a term, condition, or privilege of employment for
which there is a remedy. See Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). Because we find that complainant
has not asserted a basis within the Commission's jurisdiction, we need
not address the issue of timeliness. Accordingly, the agency's final
decision dismissing complainant's complaint is affirmed.
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
October 15, 2007
__________________
Date
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0120073252
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073252