01a34743_r
12-02-2003
Paul E. Ferland, Complainant, v. Tom Ridge, Secretary, Department of Homeland Security, Agency.
Paul E. Ferland v. Department of Homeland Security
01A34743
December 2, 2003
.
Paul E. Ferland,
Complainant,
v.
Tom Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A34743
Agency No. I-03-E005
DECISION
Upon review, the Commission finds that the agency's decision dated July
11, 2003, dismissing complainant's complaint for failure to state a claim
is proper pursuant to 29 C.F.R. � 1614.107(a)(1). In his complaint,
complainant alleged that on July 18, 2002, the acting director of
facilities authored and disseminated to several agency employees an
electronic mail message in which he questioned or otherwise challenged
complainant's professionalism, integrity, respect for coworkers, and
accused complainant of circulating inaccurate or false rumors and gossip,
including sexual misconduct. Complainant indicated that this incident
damaged his reputation and that management officials did not adequately
respond to, or address his concerns regarding it. The Commission has
consistently held that a remark or comment unaccompanied by concrete
action is not a direct and personal deprivation sufficient to render
an individual aggrieved for the purposes of Title VII. Henry v. USPS,
EEOC Request No. 05940695 (February 9, 1995). There is no evidence
in the record that complainant was subjected to any adverse action or
disciplinary action as a result of the alleged improper message. Thus,
the Commission finds that the complaint fails to state a claim within
the purview of the regulations. Although complainant claimed that the
alleged incident constituted harassment, the Commission does not find
that the alleged action was sufficiently severe or pervasive to alter
the conditions of his employment such as to state a claim of harassment.
See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Accordingly, the agency's decision is hereby 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
December 2, 2003
__________________
Date