01A41544_r
07-20-2004
Mark Concini, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Mark Concini v. Department of Justice
01A41544
July 20, 2004
.
Mark Concini,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A41544
Agency No. P-2003-0275
DECISION
Complainant filed one appeal with this Commission from two agency
decisions pertaining to 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. The record shows that on August 4, 2003,
complainant filed a complaint alleging that he was discriminated against
on the basis of reprisal when management questioned complainant and
other employees about his health, he was threatened with a fitness
for duty examination, and he was required to see the agency physician.
On November 15, 2003, complainant sent a letter to the agency requesting
to amend his complaint. In the November 15, 2003 letter to amend,
complainant alleged that management discriminated against him when,
by letter dated November 10, 2003, his supervisor documented his use of
authorized sick leave and provided him with the opportunity to discuss
the matter with an agency official. The November 15, 2003 amendment was
accepted and dismissed by decision dated December 2, 2003, and the August
4, 2003 complaint was dismissed by decision dated December 16, 2003.
The agency dismissed both allegations for failure to state a claim.
In dismissing the initial allegation for failure to state a claim,
the agency determined that since complainant had no prior record of EEO
complaints or EEO involvement there was no showing of reprisal and thus
the allegation failed to state a claim. In dismissing the amendment
for failure to state a claim, the agency determined that complainant
has not shown that he suffered any present harm or loss with respect to
a term condition or privilege of employment.
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. 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). EEOC Regulation 29 C.F.R. �1614.101(b)
provides that no person shall be subject to retaliation 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)) or the
Rehabilitation Act (29 U.S.C. �791 et seq.) or for participating in any
stage of administrative or judicial proceedings under these statutes.
The Commission finds that the agency properly dismissed both allegations
for failure to state a claim. In the complaint, complainant indicates
reprisal as his basis, however, he does not cite any prior protected
activity. Additionally, there is no record that complainant participated
in any prior protected activity. Regarding the November 10, 2003
memorandum from the agency, the Commission finds that complainant failed
to show any adverse action was taken against him as a result of receiving
the November 10, 2003 memorandum from the agency. Complainant is not
aggrieved by the November 10, 2003 memorandum.
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
July 20, 2004
__________________
Date