0120072970
09-09-2007
David C. Jackson,
Complainant,
v.
Samuel Bodman,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120072970
Agency No. WAPA061004UGP1
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts for de novo
review, complainant's appeal from the agency's May 11, 2007 final
decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. Complainant, an Apprentice Electrician at the Havre
Maintenance Office in Havre, Montana alleged that the agency discriminated
against him on the bases of disability1 and reprisal,2 when:
1. He was not allowed to work with the Electrician group or earn overtime
pay in May 2006, at the Miles City Converter station while on light duty
(due to a tear of rotator cuff), although another individual, while
on light duty, was allowed to work with the Electrician group and earn
overtime pay; and
2. He has been subjected to a continuing violation hostile work
environment since 2002.3
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
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
September 9, 2007
__________________
Date
1 Complainant describes his disability as tinnitus, a "very, very
pronounced" ringing in his ears.
2 Complainant alleges reprisal for reporting that other co-workers
were drinking beer on-the-job and for an incident which occurred
when a 400,000 candlewatt light was shined in his eyes. We find that
complainant has not alleged retaliation that is covered by any statute
that the Commission enforces.
3 This claim includes allegations that his co-workers looked away from him
when speaking; mumbled and/or failed to articulate words; and, distanced
themselves from complainant. Complainant asserts that he became unable
to rely on the Journeyman Electricians to increase his knowledge of
the trade. In addition, complainant asserts that he was harassed by
an incident wherein he and a co-worker were required to trade trucks,
and the co-worker was rude, caustic and belligerent.
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0120072970
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036