0120091571
08-05-2009
John E. Rossi, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
John E. Rossi,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120091571
Agency No. HS-07-TSA-001951
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. Complainant alleges discrimination
on the basis of reprisal when, on May 24, 2007, complainant was issued
a Letter of Reprimand for failure to follow instructions.
On February 2, 2009, the agency issued a final decision dismissing
the complaint for failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1). Therein, the agency determined that, based on a review
of the record, complainant had no prior EEO activity and therefore did
not allege a protected basis. The agency dismissed the complaint upon
determining that no other bases were alleged.
EEOC Regulations require the dismissal of complaints that fail to state
a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim, complainant
must allege present harm inflicted on the basis of race, sex, religion,
national origin, age, disability, or prior protected activity. See
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
21, 1994). Concerning claims of reprisal, EEOC Regulations prohibit
reprisal against an individual for opposing any practice made unlawful
by Title VII of the Civil Rights Act (Title VII) (42 U.S.C. 2000e et
seq.), the Equal Pay Act (29 U.S.C. 206(d)), the Age Discrimination in
Employment Act (ADEA) (29 U.S.C. 621 et seq.), the Rehabilitation Act (29
U.S.C. 791 et seq.), or for participating in any stage of administrative
or judicial proceedings under these statutes. 29 C.F.R. � 1614.101(b).
Here, complainant stated that he was discriminated against based on
reprisal. A review of the record, including the Report of EEO Counseling
and complainant's formal complaint, reveals no evidence of prior EEO
activity by complainant. Complainant has not asserted on appeal that
he engaged in prior protected activity. The Commission finds that
complainant's claim of reprisal lacks the requisite prior EEO activity
necessary for stating a reprisal claim. The agency property dismissed
the complaint, based solely on reprisal, for failure to state a claim.
Accordingly, the agency's decision to dismiss the 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
August 5, 2009
__________________
Date
2
0120091571
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013