Robert W. Wildberger v. Small Business Administration 05960761 October 8, 1998 Robert W. Wildberger, ) Appellant, ) ) Request No. 05960761 v. ) Appeal No. 01951895; ) 01952931 ) Agency Nos. 05-92-325; Aida Alvarez, ) 04-94-424 Administrator, ) Small Business Administration, ) Agency. ) ) DENIAL OF REQUEST FOR RECONSIDERATION INTRODUCTION On August 7, 1996, Robert W. Wildberger (hereinafter referred to as appellant) timely initiated a request to the Equal Employment Opportunity Commission (the Commission) to reconsider the decisions in Robert W. Wildberger v. Philip Lader, Administrator, Small Business Administration, EEOC Appeal No. 01951895 (July 3, 1996), and Robert W. Wildberger v. Philip Lader, Administrator, Small Business Administration, EEOC Appeal No. 01952931 (July 1, 1996). Appellant received the decisions on August 8, 1996. EEOC regulations provide that the Commissioners may, in their discretion, reconsider any previous decision. 29 C.F.R. §1614.407(a). The party requesting reconsideration must submit written argument or evidence which tends to establish one or more of the following three criteria: new and material evidence is available that was not readily available when the previous decision was issued, 29 C.F.R. §1614.407(c)(1); the previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy, 29 C.F.R. §1614.407(c)(2); and the decision is of such exceptional nature as to have substantial precedential implications, 29 C.F.R. §1614.407(c)(3). 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 to dismiss allegations in his complaints. BACKGROUND Appellant filed formal complaints on May 27, 1992 (Complaint 1), and April 14, 1994 (Complaint 2), alleging discrimination on the bases of color (white), sex, and reprisal, with regard to various terms and conditions of his work. The agency issued final agency decisions (FAD), accepting eight allegations and dismissing 28 allegations.<1> The previous decisions affirmed the agency's actions, and appellant has filed the instant request for reconsideration (RTR) with regard to 10 of the allegations. Appellant was employed as a Program Analyst, GS-13, from June 1980, through September 1992, when he was terminated for misconduct and poor performance.<2> Appellant challenges the agency's dismissal of the following allegations: Complaint 1 (13) denied official time to represent employees; (19) restricting appellant's use of annual leave; and (21) applying a restrictive procedure for official time. Complaint 2 (1) denied him the right to represent an employee in an EEO matter pending before the agency; (5) encouraged an EEO official to discourage and obstruct his representational activity; (6) obstructed his right to official time for EEO matters; (7) interfered with his attempts to represent an agency employee prior to August 3, 1992; (8) continued to interfere with his right to represent an agency employee; (9) interfered with his right to represent other current and former agency employees; and (12) obstructed and prevented him from representing current and former agency employees in EEO complaints and other proceedings against the agency. As to Complaint 1, the previous decision affirmed the dismissal of allegations (13), (19), and (21) as moot, finding that appellant's termination constituted an interim event and completely eliminated the possibility that the alleged discrimination would recur. In addition, the decision found that allegation (13) was properly dismissed for failure to state a claim, since the rights asserted by appellant were the EEO rights of others. With regard to Complaint 2, the previous decision affirmed the agency's dismissal of allegations (1), (5), (7), (8), (9), and (12) for failure to state a claim, since appellant, as the representative, lacked standing to assert these rights. With regard to allegation (6), the decision noted that, to the extent that appellant claimed official time for others, his allegation is properly dismissed for failure to state a claim, and, if he asserted right to official time for his personal complaints, he failed to identify an injury prior to his termination for which he timely contacted an EEO counselor. In his RTR, appellant argues that his termination is in litigation before the United States Court of Appeals for the Federal Circuit and should not be dismissed. Next, he contends that his injury in Complaint 2(6) was clearly stated, that is, the agency interfered with his use of official time. Finally, appellant argues that he has a right to represent employees before the agency through the employees' right to representation and that he is aggrieved, since his representation of others is protected activity. In support of his argument, appellant cites two cases issued by the Office of Federal Operations in 1986. Appellant has submitted material from other litigation pending in other forums, which are not directly related to the matter before us. In its comments, the agency argues that appellant's RTR does not meet the criteria of 29 C.F.R. §1614.407(c). Also, the agency contended that appellant's legal citations were not pertinent to the questions at issue herein, since neither case provided a basis for an EEO representative to assert EEO rights independent of a complainant. ANALYSIS AND FINDINGS The Commission may, in its discretion, reconsider any previous decision when the party requesting reconsideration submits written argument or evidence that tends to establish at least one of the criteria of 29 C.F.R. §1614.407(c). Having reviewed the record and submissions of the parties, we find that appellant's request fails to meet the criteria of 29 C.F.R. §1614.407(c). Complaint 1 [(13), (19), and (21)] EEOC Regulation 29 C.F.R. §1614.107(e) provides for the dismissal of a complaint, or portions thereof, when the issue raised therein has become moot, that is, where there is no reasonable expectation that the alleged violation will recur, and interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. See County of Los Angeles v. Davis, 440 U.S. 625 (1979). Appellant argues that because his termination is on appeal in federal court, these allegations should not be dismissed as moot. Appellant has not shown, however, that there is any likelihood that his litigation will conclude in his favor. We find that the final decision of the MSPB is sufficient to render the issue of appellant's termination resolved. Fisher v. Department of Defense, EEOC Request No. 05950153 (August 15, 1996). Appellant's suggestion that these matters be held in abeyance pending resolution of his litigation in other forums is not contemplated by our regulations. With regard to these allegations, we find that appellant's termination has intervened and eliminated the effects of the alleged discrimination. For these reasons, we find that these allegations were properly dismissed as moot. 29 C.F.R. §1614.107(e). Complaint 2 [(1), (5), (6), (7), (8), (9), and (12)] The Commission's regulations require an agency to accept a complaint from any aggrieved employee or applicant for employment who believes that s/he 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'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 (April 21, 1994). Here, appellant is asserting EEO rights as a representative for other employees. The Commission has considered this question and determined that the agency was correct in finding that appellant was not aggrieved. An agency is required to address EEO complaints only when filed by an "aggrieved" person, that is, one who has suffered direct, personal deprivation at the hands of the employer. See Paula Quinones v. Department of Defense, EEOC Request No. 05920051 (March 12, 1992). The employer's act must have caused some concrete effect on the complainant's employment status. Appellant's representation of other employees in the agency's EEO processes is not sufficiently tied to his employment status with the agency to state a claim. See Morman v. Department of the Air Force, EEOC Appeal No. 01964629 (March 17, 1997). Finally, appellant's argument on RTR, that dismissal of his claims would have a chilling effect in future EEO cases is speculative and too attenuated to constitute a harm to appellant. Carlton v. USPS, EEOC Request No. 05950160 (August 3, 1995). Next, we address allegation (6) and note that appellant failed to clarify whether this claim concerned his use of official time in representation of other employees or for matters he filed on his own behalf. To the extent that appellant alleged denial of official time in his representation of others, as discussed, above, his allegation is properly dismissed for failure to state a claim. If appellant was asserting his right to official time for personal EEO matters, we find that he failed to identify an injury prior to his termination for which he timely contacted an EEO counselor. For the above reasons, the Commission finds that appellant's request does not meet the regulatory criteria of 29 C.F.R. §1614.407(c). The Commission finds that appellant's request did not present any new or material evidence or establish that the previous decisions' findings were erroneous. Accordingly, the Commission denies appellant's request to reconsider the previous decisions. CONCLUSION After a review of the appellant's request for reconsideration, the agency's reply thereto, the previous decisions, 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 decisions in EEOC Appeal No. 01951895 (July 3, 1996) and EEOC Appeal No. 01952931 (July 1, 1996) remain the Commission's final decisions. 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: OCT 8, 1998 Date Frances M. Hart Executive Officer Executive Secretariat 1The agency accepted the following allegations: Complaint 1: allegations (2), (3), (6), (12), (20), and (23) [FAD, December 14, 1994]; and, Complaint 2: allegations (2) and (4) [FAD, April 14, 1994]. On February 29, 1996, the agency issued a final decision dismissing these allegations pursuant to 29 C.F.R. §1614.107(g), which was affirmed on appeal. EEOC Appeal No. 01963451 (January 27, 1997). Appellant's request for reconsideration is under consideration by the Commission. See EEOC Request No. 05970527. 2Appellant appealed his termination to the Merit Systems Protection Board (MSPB), which was eventually sustained by the full Board. Wildberger v. Small Business Administration, MSPB Docket No. DC0752930005-B-2 (March 6, 1996). Appellant was charged with misconduct while serving as union president through March 1989, including appropriation of union funds for personal use and misuse of government property, and poor performance.