01A12564_r
06-19-2001
Neal Reese, Jr., Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Neal Reese, Jr. v. Department of the Air Force
01A12564
June 19, 2001
.
Neal Reese, Jr.,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A12564
Agency No. 9V1M01161
DECISION
Complainant filed a timely appeal with this Commission from an agency's
February 14, 2001 dismissal of his employment discrimination complaint.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of race (African-American) when:
On December 21, 2000, complainant became aware that the day shift Sub-Unit
Chief and the Section Chief violated complainant's privacy rights when
they used complainant's password to log-in on the Axiom computer to pull
up his work production;
On December 21, 2000, complainant became aware that the day shift Sub-Unit
Chief and the Section Chief checked complainant's work production and
not other employees in the section; and
On December 21, 2000, complainant became aware that the day shift Sub-Unit
Chief put his name on kits that he worked.
The agency dismissed the entire complaint for failure to state a claim,
pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(1). The agency
noted that the EEO process does not entertain claims of privacy rights
violations, and found that complainant suffered no tangible harm from
the other matters alleged.
The Commission does not enforce the Privacy Act, 5 U.S.C. � 552(g)(1).
See Bucci v. Department of Education, EEOC Request Nos. 05890289,
05890290, 05890291 (April 12, 1989). The United States District Court
holds exclusive jurisdiction for claims involving the disclosure of
identifiable information contained in federal systems of records.
Therefore, the agency's dismissal of claim (1) was proper.
To state a claim, complainant must allege harm to a term, condition,
or privilege of employment on the basis of race, color, religion,
sex, national origin, age, disabling condition, or reprisal for prior
protected activity. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). Hostile work environment harassment is
actionable if it sufficiently severe or pervasive to alter the conditions
of complainant's employment. See Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993).
In claims (2) and (3), complainant essentially argues that he was
subjected to increased scrutiny of his work. The Commission has found
that such claims, if frequent and severe enough, may state a claim of
harassment. See Schwartz v. United States Postal Service, EEOC Request
No. 05960294 (June 27, 1996); Reda v. United States Postal Service, EEOC
Request No. 05950934 (March 7, 1996). Isolated incidents of increased
scrutiny, however, generally fail to state a claim. See Strassburger
v. Social Security Administration, EEOC Appeal No. 01986855 (July 26,
1999); Sandoval v. Department of the Treasury, EEOC Appeal No. 01984055
(June 24, 1999). In the present complaint, complainant has not alleged
matters sufficiently severe or pervasive to state a claim of harassment
through increased scrutiny.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
June 19, 2001
__________________
Date