0120071127
04-26-2007
John R. Bland,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120071127
Agency No. HS06FEMA005182
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 27, 2006, 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 bases1 of race (African-American), color (Unspecified), and reprisal
for prior protected EEO activity under an EEO statute that was unspecified
in the record when when:
1. Complainant did not receive the results of his Level Three evaluation,
which was conducted on July 26-27, 2004;
2. Complainant was treated differently than others in his evaluation;
3. Complainant was impeded in his progress towards the Level Three
evaluation;
4. Complainant was subjected to a hostile work environment that included
comments from his Supervisor and from a Team Leader;
5. In October 2005, a Management Official called complainant a "hot
head."
The agency dismissed claims 1, 2, and 3 for untimely EEO Counselor
contact. The agency noted that complainant first contacted an EEO
Counselor on June 21, 2005, which is beyond the forty-five (45)
day limitation period. On appeal, complainant has presented no
persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact. Accordingly, we find the
agency properly dismissed claims 1 through 3 pursuant to 29 C.F.R. �
1614.107(a)(2) and 105(1).
Regarding claims 4 and 5, the agency found that complainant failed to
state a claim. Following a review of the record, the Commission finds
that the complaint fails to state a claim under the EEOC regulations
because complainant failed to show that the harassment complained of
had the purpose or effect of unreasonably interfering with his work
performance and/or creating an intimidating, hostile, or offensive
work environment. See McCleod v. Social Security Administration, EEOC
Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982). Nor has he shown he suffered a 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 (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
April 26, 2007
__________________
Date
1 The record shows that complainant, for the first time on appeal, seeks
to amend his complaint to include sex as a basis of discrimination.
However, since we are affirming the agency's FAD finding that the
complaint should be dismissed for failure to state a claim and for
untimely Counselor contact, complainant's amendment has no practical
effect on the outcome.
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0120071127
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071127