01a52192
05-03-2005
Mark Conners, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Mark Conners v. Department of the Navy
01A52192
May 3, 2005
.
Mark Conners,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A52192
Agency No. DON 04-61065-10662
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 27, 2004, 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 basis of reprisal for prior EEO activity when:
(1) From June 29, 2004 to present, he has been harassed regarding
spitting in the shower;
On July 29, 2004, he was issued a Letter of Reprimand.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. Specifically, the agency determined that
complainant did not allege discrimination covered by one of the statutes
applicable to the federal sector EEO complaint process.
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,
� 1614.106(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).
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 Age
Discrimination in Employment Act (ADEA) (29 U.S.C. 621 et seq.), the
Equal Pay Act (29 U.S.C. 206(d)), 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).
In the instant case, complainant states that he was discriminated against
based on reprisal for filing a fraud, waste, and abuse grievance against
his third level supervisor in 2002. However, a review of the record
reveals no evidence that complainant 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.
Therefore, we find the agency properly dismissed the complaint, based
solely on reprisal, pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
Accordingly, the agency's decision to dismiss the 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
May 3, 2005
__________________
Date