01a54402
09-12-2005
Donald Estes, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security Agency.
Donald Estes v. Department of Homeland Security
01A54402
September 12, 2005
.
Donald Estes,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security
Agency.
Appeal No. 01A54402
Agency No. HS-05-0576
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 28, 2005, dismissing his 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 his
complaint, complainant alleged that he was subjected to discrimination
on the basis of sex (male) when:
On November 8, 2004, the Chief of Testing, Evaluation and Analysis Branch
of the Research and Evaluation Division sent an e-mail to everyone in
the Research and Evaluation Division, accusing complainant of being
"unprofessional, discourteous, and inflammatory" in his distribution of
e-mail messages to that division.
On November 8, 2004, the Chief sent complainant an e-mail stating that
she would meet with the Branch Chief of Employee Labor Relations, if
complainant continued to send her unprofessional e-mail messages.
On November 9, 2004, complainant met with the Chief and his Division
Chief and requested an apology and retraction from the Chief and
she allegedly screamed that she would not apologize or comply with
complainant's request.
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. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). Complainant has not presented
evidence to show that he was subjected to any adverse action with
respects to a term, condition or privilege of employment as a result of
the Chief's e-mail messages or her refusal to apologize. Additionally,
complainant's complaint on a whole is insufficient to state a claim
of harassment. Accordingly, the agency's final decision dismissing
complainant's 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
September 12, 2005
__________________
Date