0120065331
02-06-2007
Daniel J. Van Horn, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Daniel J. Van Horn,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 01200653311
Agency No. DOT-2006-20168-FAA-01
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated September 1, 2006, dismissing his formal complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq.
In the instant formal complaint, filed on August 21, 2006, complainant,
an air traffic control specialist, claimed that he was subjected to
harassment on the basis of race (Asian) when:
his supervisor verbally counseled him on two occasions, July 20
and 21, 2006.
In its September 1, 2006 final decision, the agency dismissed
complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim. The agency noted that complainant's
supervisor verbally counseled complainant regarding cell phone usage in
the flight control tower and causing a noise distraction in the tower.
The agency found that complainant was not rendered aggrieved by this
matter.
On appeal, complainant contends that, after the agency dismissed his
complaint, he was subjected to other acts of discrimination and harassment
by his supervisor and other agency officials when: on September 27,
2006, he was skipped four times for relief; on October 11, 2006, he
was counseled for being a distraction, and for making a page at the
New York TRACON to announce a winner of a raffle; on October 12, 2006,
he was counseled for not staying at his position following his debrief
for the required 2 minutes; subjected to "arbitrary and capricious work
assignments, breaks and meal break assignments;" and "I have not been
considered for Controller-in-Charge duties nor the 10% pay differential
which goes along with such an assignment."
Upon review the claim raised in the instant complaint, we find that it
does not involve sufficient harm or loss to the conditions, privileges of
terms of complainant's employment to render him aggrieved. Therefore,
we find that the agency properly dismissed the complaint. Moreover, a
review of the record reflects that the matter in question is insufficient
to support a claim of harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
Finally, the Commission notes that on appeal, complainant raises a variety
of new claims relating to actions purportedly taken by his supervisor
and other agency officials after the instant complaint was dismissed.
It is inappropriate for complainant to raise these new claims for the
first time as part of the instant appeal. If complainant wishes to
pursue these claims, he should contact an agency EEO counselor.
The agency's final decision dismissing the instant 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
February 6, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
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0120065331
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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