0120113025
11-04-2011
Dale A. Chenoweth,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense,
(National Geospatial-Intelligence Agency),
Agency.
Appeal No. 0120113025
Agency No. NGAE11ASD08
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated May 9, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Acquisition Management Execution Officer at the Agency’s facility
in Reston, Virginia.
On April 5, 2011, Complainant filed a formal complaint alleging that the
Agency subjected him to discrimination on the basis of disability (mental)
when he was denied the opportunity to appeal a letter of warning which he
received on May 7, 2010. The Agency dismissed the complaint, dismissed
pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim.
The instant appeal followed.
Briefly, the record shows that Complainant received a letter of warning
alleging a breach of security involving his computer. The letter was
issued by the Personnel Security office, and indicated it would remain
in his security file for six months. Complainant attempted to appeal
the matter to his supervisor, who referred him to Computer Security.
In February 2011, Complainant was told there would be no further
investigation of the matter. Complainant did not lose his security
clearance as a result of this matter.
ANALYSIS AND FINDINGS
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. Dep’t of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). To the extent that Complainant is
challenging the lack of an appeals process regarding security breaches
connected to security clearance matters, those matters must be raised
within that process not with the Commission. Complainant has not alleged
that he was treated differently than other similarly situated employees
with regard to the appeals process.
To the extent Complainant is arguing that the issuance of the May 2010
letter of warning itself was discriminatory, we note that Complainant
did not contact an EEO counselor until February 7, 2011. EEOC Regulation
29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination
should be brought to the attention of the Equal Employment Opportunity
Counselor within forty-five (45) days of the date of the matter alleged to
be discriminatory or, in the case of a personnel action, within forty-five
(45) days of the effective date of the action. Thus, Complainant’s
EEO counselor contact was untimely as to the letter of warning.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
November 4, 2011
__________________
Date
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0120113025
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113025