0120091867
06-12-2009
Eugene Smith, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Eugene Smith,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120091867
Agency No. ARMEDCOM08DEC05231
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 3, 2009, 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
In a complaint dated December 5, 2008, complainant alleged that he was
subjected to discrimination on the bases of race (African-American),
color (Black), and disability (mental) when complainant's inquiries
regarding a medical study were delayed or denied, and complaints to the
agency were curtailed or stopped. The agency dismissed the complaint,
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim
asserting there was no record that complainant was ever an employee or
applicant for employment with the agency.
Briefly, complainant alleges that when he was 17 years old, he
participated in a medical study sponsored by the agency. He alleges
that a cerebral device was implanted at the Arkansas State University in
1969. Complainant is apparently seeking payment for his participation in
the study. To that extent, he asserts he filed Freedom of Information Act
(FOIA) requests with the Medical Command and his appeal for information
was not processed for 12 months. Complainant also claimed that the
agency's Human Research Protection office did not advance his complaint
regarding a Human Medical Research program; that the Office of Surgeon
General did not advance his complaint; and the agency's Inspector General
did not process his complaint.
In its decision, the agency stated it had no records to indicate that
complainant was ever an employee of the agency or an applicant for
employment and dismissed the matter. The agency also stated it has no
records of the medical research project.
The regulations set forth at 29 C.F.R. �� 1614.103, .106(a) provide,
in relevant part, that an agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or disabling condition.
In this case, the agency asserts that it has no record of complainant as
an employee or applicant for employment. Complainant has not provided
any evidence to the contrary. Even if complainant had been assigned
to a government-sponsored medical research program, that would not be
proof that he was an agency employee.
Moreover, the Commission finds that complainant's allegations about the
agency's failure to comply properly with his FOIA requests, as well as
the alleged actions by the Office of the Surgeon General, the Inspector
General, and the Human Research Protection Office are not of the type
generally within the purview of the Commission's regulations. Thus,
even if complainant can show that he was once an agency employee in
1970 or 1971 as he asserts in his appeal, the actions he complains
of do not appear to be sufficiently related to a term or condition of
that employment.
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).
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
June 12, 2009
__________________
Date
2
0120091867
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091867