Mark Conners, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMay 3, 2005
01a52192 (E.E.O.C. May. 3, 2005)

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