Ismael R. Diaz, Appellant,
v.
Sheila E. Widnall, Secretary, Department of the Air Force, Agency.
Request No.
05931049
Appeal No. 01932839
Agency No. KHOF93266
April 21, 1994
DENIAL OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On August 16, 1993, Ismael R. Diaz (hereinafter referred to as appellant), through his attorney, timely initiated a request to the Equal Employment Opportunity Commission (EEOC or Commission) to reconsider the decision in Ismael R. Diaz v. Gen. Merrill A. McPeak, Acting Secretary, Department of the Air Force, EEOC Appeal No. 01932839 (July 28, 1993). EEOC regulations provide that the Commission may, in its discretion, reconsider any previous decision. 29 C.F.R. �1614.407(a). The party requesting reconsideration must submit written argument or evidence that tends to establish one or more of the three criteria prescribed by 29 C.F.R. �1614.407(c). The appellant bases his request on 29 C.F.R. �1614.407(c)(2) (the previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy) and 29 C.F.R. �1614.407(c)(3) (the decision is of such exceptional nature as to have substantial precedential implications). For the reasons set forth herein, the appellant's request is denied.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed the final decision of the agency dismissing appellant's complaint on the grounds that it failed to state a claim.
BACKGROUND
Appellant filed his formal complaint on April 15, 1993. On May 10, 1993, the agency issued its final agency decision (FAD), dismissing appellant's complaint pursuant to 29 C.F.R. �1614.107(a), finding that the complaint failed to state a claim. Upon appeal, the previous decision affirmed the agency's dismissal of appellant's complaint.
At the time of the complaint, appellant was employed as a Chemist, GS-13, at Kelly AFB (San Antonio, Texas). Appellant alleged that he was discriminated against on the bases of his race (Hispanic), national origin (Hispanic), sex (male), age (48), and in reprisal for prior EEO activity when his supervisor gave him a performance review letter on January 28, 1993. The letter informed appellant that his performance was unsatisfactory and stated that if his work did not improve, 'appropriate actions will be proposed to either reassign you, change you to [a] lower grade position, or to separate you from Federal service.'
In its FAD, the agency found that the letter was not final or permanent, and thus, appellant's complaint failed to state a claim. The previous decision affirmed the agency's action citing 29 C.F.R. �1614.107(e), and holding that the letter was a preliminary step to taking a personnel action.
Appellant has filed a request to reconsider the previous decision. Based on his unsupported assertion that the letter is 'in appellant's personnel records which can be reviewed by other management officials,' he argues that he is aggrieved. In addition, appellant contests the definition of 'aggrieved employee' contending '[T]here is nothing in law, rule, or regulation which says an employee is 'aggrieved' only if he has suffered direct and personal deprivation at the hands of the employer.' He reiterates arguments made in his appeal that being aggrieved does not require such deprivation, that 29 C.F.R. �1614.107(e) is unconstitutional and contrary to 29 C.F.R. Part 1601 et seq., and that it denies a remedy for illegal acts of discrimination.
In response, the agency denies that the letter is in appellant's personnel files or that any agency officials, other than his supervisor, have access to it. It further asserts that only an annual performance appraisal or performance-based action, such as a demotion or removal, is placed in an official personal file. Finally, the agency argues that appellant's request fails to meet the criteria of 29 C.F.R. �1614.407(c).
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that appellant's request for reconsideration fails to meet any of the criteria of 29 C.F.R. �1614.407(c)). It is therefore the decision of the Commission to deny the request. In this regard, we emphasize that a request for reconsideration must meet one of the regulatory criteria of 29 C.F.R. �1614.407(c). Appellant's request fails to meet the narrow requirements for reconsideration and does not present argument or evidence that establish substantive error or set forth special circumstances.
Initially we address appellant's assertion that the letter was placed in his official agency file. There is no evidence in the record, and appellant has not provided any, to support this declaration. In addition, we note the agency's repudiation of appellant's contention. We therefore conclude that the letter was not placed in appellant's official agency file.
Next we consider appellant's challenge to the Commission's regulations that require an agency to cancel a complaint that fails to state a claim where an employee is not aggrieved. See 29 C.F.R. �1614.107(a). While the regulations do not define the term 'aggrieved employee,' the U.S. 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. Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205 (1972). To state a claim under our regulations, an employee must allege and show an injury in fact. See Hackett v. McGuire Brothers, 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, a present and unresolved harm or loss affecting a term, condition or privilege of his/her employment. Taylor v. USPS, EEOC Request No. 05900367 (June 2, 1990); Hammonds v. USPS, EEOC Request No. 05900863 (October 31, 1990).
Accordingly, where a complainant challenges a proposed action or a preliminary step to taking a personnel action that does not create a direct and personal harm, s/he is not aggrieved and therefore fails to state a claim within the meaning of the Commission's regulations. 29 C.F.R. �1614.107(e). See Joseph Charles v. Department of the Treasury, EEOC Request No. 05910190 (February 25, 1991); Lewis v. Department of the Interior, EEOC Request No. 05900095 (February 6, 1990); see also, Section by Section Analysis, 57 Fed. Reg. 12642 (1992).[FN1]
Appellant's underlying allegation herein concerns the letter from his supervisor. The previous decision correctly found that the letter stated a preliminary step to taking a personnel action. Therefore, the previous decision properly affirmed the agency's dismissal of appellant's complaint pursuant to 29 C.F.R.�1614.107(e).
CONCLUSION
After a review of the appellant's request for reconsideration, the agency's reply thereto, the previous decision, and the entire record, the Commission finds that the appellant's request fails to meet any of the criteria of 29 C.F.R. �1614.407(c). It is therefore the decision of the Commission to deny the appellant's request. The decision in EEOC Appeal No. 01932839 (July 28, 1993) remains the Commission's final decision. There is no further right of administrative appeal on a decision of the Commission on a Request for Reconsideration.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court. 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.
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:
Frances M. Hart
Executive Officer
Executive Secretariat
[FN1]. In the Section by Section Analysis, the Commission stated:
We intend [29 C.F.R. �1614.107(e)] to require dismissal of complaints that allege discrimination in any preliminary steps that do not, without further action, affect the person; for example, progress reviews or improvement periods that are not a part of any official file on the employee.
57 Fed. Reg. at 12643.
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