0120101988
06-07-2010
Paul C. Traver, Jr., Complainant, v. Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.
Paul C. Traver, Jr.,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 0120101988
Agency No. 10-63-00403D
DECISION
Upon review, the Commission finds that the agency in its final decision
dated March 15, 2010, properly dismissed complainant's complaint
for failure to state a claim pursuant to 29 C.F.R. �1614.107(a)(1).
The record indicates that complainant filed his complaint, dated February
24, 2010, alleging discrimination based on disability (disabled veteran)
when: (1) on January 12, 2010, he learned during a telephone conversation
with an agency employee that the agency failed to hire him for an
unspecified position; and (2) on February 2, 2010, he was mistreated by
an unidentified individual in the agency EEO office when that individual
called him regarding the instant complaint and told him to stop screaming
or he would hang up and proceeded to hang up on complainant. The record
indicates that on January 28, 2010, complainant was subsequently offered
and accepted a Crew Leader Assistant position at the agency.
After a review of the record, we find that complainant clearly alleged
discrimination based on his veterans status or preference but claimed
no specific disability within the purview EEO regulations. In fact,
complainant claimed that the alleged discrimination was based
on the agency's failure to follow established Office of Personnel
Management hiring guidelines for employment, i.e., not hiring veterans.
Veteran's status is not protected under statutes enforced by the EEOC.
In addition, we note that complainant, for the first time on appeal,
may be indicating that he was discriminated against on the basis of age.
The Commission finds that the complaint did not contain the claim of age
discrimination and therefore this basis is not part of the complaint.
In the instant circumstance, it is too late to add such a basis. Based on
the foregoing, we find that complainant failed to provide a basis within
the purview of the regulations. Complainant has not otherwise challenged
the definition of the complaint.
We also note that during the incident described in claim (2),
complainant indicated that he told the identified individual that he
always talked loud because he had a hearing problem. We find that this
claim merely alleged his dissatisfaction with the agency's processing
of his complaint and is therefore properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(8). To the extent this claim did not concern agency
processing of the EEO complaint, we find that the incident, if true, is
not sufficiently severe so as to render complainant aggrieved or state
a claim of harassment. Therefore, claim (2) is also properly dismissed
pursuant to 29 C.F.R. �1614.107(a)(1).
The agency's final decision dismissing complainant's complaint is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
6/7/10
__________________
Date
2
0120101988
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013