David Thweatt, Jr., Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency) Agency.

Equal Employment Opportunity CommissionDec 30, 2003
01A32145_r (E.E.O.C. Dec. 30, 2003)

01A32145_r

12-30-2003

David Thweatt, Jr., Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency) Agency.


David Thweatt, Jr. v. Department of Defense

01A32145

December 30, 2003

.

David Thweatt, Jr.,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

(Defense Logistics Agency)

Agency.

Appeal No. 01A32145

Agency No. GA-02-015

DECISION

Complainant initiated contact with an EEO Counselor on March 12, 2002.

On March 29, 2002, complainant filed a formal EEO complaint wherein he

claimed that he was discriminated against on the bases of his sex (male),

race (African-American), and age (dob 2/7/52). The agency defined the

complaint as alleging that complainant was discriminated against when:

1. The Commander at the Defense Supply Center Richmond (DSCR) allowed

civilian management to manipulate the EEO Regulations.

2. The Commander at the DSCR allowed a White coworker to criticize

and abuse training funds for a class which the Commander said it was

unfortunate that the coworker did not attend.

3. The Commander at the DSCR allowed the EEO Office to perform an

incomplete investigation on a false accusation by a supervisor who is

a former law enforcement officer.

4. The Commander at the DSCR does not take Customer Quality Service

seriously in the empowerment of training.

Complainant did not challenge the framing of the complaint.

By final action dated June 5, 2002, the agency dismissed claims 1-2 of

the complaint pursuant to 29 C.F.R. �1614.107(a)(2), on the grounds that

complainant failed to initiate contact with an EEO Counselor in a timely

manner. The agency determined based on complainant's response to its

request for clarification that the events at issue in claims 1-2 occurred

on July 17-18, 2001. The agency subsequently determined that complainant's

contact of an EEO Counselor on March 12, 2002, was after the expiration

of the 45-day limitation period for contacting an EEO Counselor.

The agency dismissed claim (3) pursuant to 29 C.F.R. �1614.107(a)(8) on

the grounds that the claim alleged dissatisfaction with the processing

of a previous complaint. According to the agency, claim (3) concerns

the agency's investigation of a formal complaint filed by complainant on

November 5, 2001 (GA-02-005). The agency dismissed claim (4) pursuant

to 29 C.F.R. �1614.107(a)(1) on the grounds of failure to state a claim.

The agency determined that complainant did not respond to the request

for clarification as to how he suffered a personal loss or harm with

respect to a term, condition, or privilege of his employment. Thereafter,

complainant filed the instant appeal.

With regard to claim (1), the relevant incident concerned complainant not

being provided with a copy of an e-mail that he requested. The record

indicates that complainant requested a copy of the e-mail in July 2001

and September 2001. As for claim (2), the record reveals that the

alleged incident occurred on July 17-18, 2001. Complainant did not

show due diligence as he did not initiate contact with an EEO Counselor

until March 12, 2002, after the expiration of the 45-day limitation

period for contacting an EEO Counselor. Complainant has not submitted

sufficient argument or evidence to warrant an extension of the 45-day

limitation period. Accordingly, the agency's dismissal of claims 1-2

on the grounds of untimely EEO contact was proper.

As for claim (3), we observe that complainant is challenging the adequacy

of an EEO investigation in which he had been accused of harassment.

Complainant claimed that he was denied information gathered during the

investigation. We find that complainant has not established that he

suffered harm to a term, condition, or privilege of his employment as a

result of the investigation. We therefore dismiss claim (3) pursuant to

29 C.F.R. �1614.107(a)(1) on the grounds of failure to state to claim.

Accordingly, the agency's dismissal of claim (3) was proper.

With regard to claim (4), we observe that complainant failed to identify

in his response to the agency's request for clarification any specific

examples where he was denied training.<1> Complainant also chastises the

agency for not encouraging his coworkers to undergo further training.

We find that complainant has not established how he suffered harm with

regard to a term, condition, or privilege of his employment. Accordingly,

the agency's dismissal of the claim (4) on the grounds of failure to

state a claim was proper.

The agency's decision dismissing the 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

December 30, 2003

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1We note that complainant makes reference to a settlement agreement dated

October 12, 2001, where the agency agreed in part to provide him with

training opportunities in exchange for the withdrawal of his complaint.

We observe that complainant has filed a separate breach of settlement

claim with the Commission and there is no indication that claim (4)

of the instant complaint pertains to any specific training opportunities

beyond that covered in the settlement agreement. Complainant's settlement

breach claim will be adjudicated separately by the Commission.