01A60156
03-29-2006
James M. Shannon, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Threat Reduction Agency), Agency.
James M. Shannon,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Threat Reduction Agency),
Agency.
Appeal No. 01A60156
Agency No. DTRA-05-BD-010
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 15, 2005, dismissing his complaint of unlawful
employment discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of disability (deaf) when:
1. Management took too long (from mid-March 2005 through June 13,
2005) to provide him with a telecommunication device for the
deaf (TDD) and a permanent work station;
2. When complainant received his permanent work station on June 13,
2005, it contained piles of paperwork and boxes; and
3. Complainant's supervisor lost his time sheet on two consecutive
pay periods, the most recent occurring on July 11, 2005.
The agency dismissed the compliant. As to claim (1), the agency indicated
that during the informal process, complainant stated that he wished to
withdraw the issue of the TDD. As such, the agency dismissed claim (1)
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. In
addition, the agency noted that complainant has been provided with the
permanent work station and the TDD, therefore, the claim is moot and should
be dismissed pursuant to 29 C.F.R. � 1614.107(a)(5). Finally, the agency
found that claims (2) and (3) should also be dismissed for failure to state
a claim. Specifically, the agency indicated that complainant failed to
show that he was aggrieved.
Complainant appealed without comment.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to state
a claim. 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. 29 C.F.R. �� 1614.103, .106(a). The
Commission's federal sector case precedent has long defined an "aggrieved
employee" as one who suffers a present harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy. Diaz v.
Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
As for claim (2), complainant has not shown that he suffered a harm or loss
with respect to a term, condition, or privilege of employment when the
workstation had piles of paperwork and boxes. With regard to claim (3),
complainant received his pay despite the loss of his timesheets by his
supervisor. Therefore, complainant has not indicated how he was harmed by
the loss of his timesheets. Accordingly, we find that the agency properly
dismissed claims (2) and (3).
Finally, as to claim (1), for purposes of analysis, we shall assume
complainant properly raised the matter in his formal complaint.
Complainant alleged that he received the TDD and the permanent work
station; however, he asserted that management delayed in providing those
items to him. We note that complainant raised the matter to the EEO
counselor. By e-mail dated June 13, 2005, complainant informed the EEO
Counselor that he had an old TDD which he received when he first joined the
agency. Further, complainant stated that he was informed that a new TDD
was ordered for him and should arrive the next day. Complainant failed to
indicate that any harm suffered due to the old TDD or the delay in
providing a new TDD. Complainant did not provide any information as to any
harm regarding the lack of a permanent work station for three months. As
such, complainant has not shown that he was aggrieved by the delay in
providing a new TDD or a permanent work station. Accordingly, we affirm
the agency's dismissal of claim (1).
Accordingly, we affirm the agency's final decision dismissing the
complaint.
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
March 29, 2006
__________________
Date