Michael J. Dickman, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionMay 18, 2000
01a02149 (E.E.O.C. May. 18, 2000)

01a02149

05-18-2000

Michael J. Dickman, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Michael J. Dickman v. Department of Defense

01A02149

May 18, 2000

Michael J. Dickman, )

Complainant, )

)

v. ) Appeal No. 01A02149

) Agency No. LA-99-002

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Logistics Agency), )

Agency. )

______________________________)

DECISION

The Commission finds that the agency's December 9, 1999 final

decision dismissing the complaint on the basis of failure to state a

claim, is proper pursuant to the provisions of 64 Fed. Reg. 37,644,

37,656 (1999) (to be codified and hereinafter referred to as 29

C.F.R. �1614.107(a)(1)).<1>

The record shows that Complainant claimed that he had been discriminated

against on the bases of color (red skin color), and physical disability

(Acne Rosacea) when a supervisor sent an e-mail to other employees

referring to Complainant as "red man".

The agency issued a final decision dismissing the complaint on the

grounds of failure to state a claim after finding that Complainant was

not aggrieved. The agency further found that the Responsible Management

Official (RMO) had "been appropriately disciplined" and would receive

training.

On appeal, Complainant contends, inter alia, that although he "did not

suffer a quantifiable loss such as a promotion, ... [he] suffered a more

subtle but just as disturbing loss".

The Commission has consistently held that

"Agencies have a continuing duty to promote the full realization of

equal employment opportunity in their policies and practices. This duty

extends to every aspect of agency personnel policy and practice in the

employment, advancement, and treatment of employees. Agencies shall,

among other things, insure that managers and supervisors perform in such

manner as to effectuate continuing affirmative application and vigorous

enforcement of the policy of equal opportunity".

See Crespo v. USPS, EEOC Request No. 05920842 (September 17, 1993).

However, the Commission has also held that a remark or comment

unaccompanied by any concrete effect does not render the complainant

aggrieved. Fuller v. USPS, EEOC Request No. 05910324 (May 2, 1991).

A review of the record shows that the alleged discriminatory incident

occurred only once. The agency is advised that future incidents such

as this one could be considered sufficient to state a claim under our

regulations. However, given the specific facts of the instant case, we

find that the agency properly dismissed the instant complaint because of

the singular nature of the purported act of discrimination. Accordingly,

the final agency decision was proper and is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

May 18, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________ ______________________________

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.