0120071987
01-08-2009
Phillip W. Cox, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Contract Management Agency), Agency.
Phillip W. Cox,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Contract Management Agency),
Agency.
Appeal No. 0120071987
Agency No. YS-07-0005
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated February 12, 2007, dismissing his formal 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
On December 27, 2006, complainant filed the instant formal complaint.
Therein, complainant claimed that he was subjected to discrimination on
the bases of race and age when:
a. from July 2006 through October 2006, his temporary supervisor created a
hostile work environment for him by such actions as refusing his overtime
requests; on one occasion "screaming" at him over the telephone; and by
making comments such as "you need to learn your place" and that he was a
"white bully;" and
b. on October 23, 2006, he received a "close out" review of
"unsatisfactory" on his appraisal from his temporary supervisor.
The record reflects that by letter dated January 17, 2007, complainant
requested that his formal complaint be amended to include the following
claim of discrimination on the basis of reprisal for prior EEO activity:
c. on January 16, 2007, he was informed that his access to classified
information was suspended.
The agency accepted complainant's request to have his formal complaint
amended to include claim c.
On February 12, 2007, the agency issued a final decision. Therein, the
agency dismissed claims (a) - (c) pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim, finding that complainant was not aggrieved.
Regarding claim (a), the agency determined that the temporary supervisor's
purported remarks failed to rise to the level of an adverse action.
The agency further concluded that the alleged acts did not rise to the
level of harassment. Regarding claim (b), the agency determined that
the fact that complainant received an informal "close out review" at the
conclusion of his detail and not a formal evaluation or appraisal, does
not create a personal loss or harm for him. Specifically, the agency
stated that complainant's official performance rating for the year
2006 was "outstanding," which is the highest rating one can review.
Regarding claim (c), the agency stated that the Commission has no
jurisdiction to review the merits of claims relating to the validity
of a security clearance requirement and the substance of an agency's
security clearance determination.
The record contains a copy of complainant's performance rating for the
rating period of January 1, 2006 through December 31, 2006, signed and
dated by complainant on January 23, 2007. Therein, complainant received
an "outstanding" rating.
The Commission determines that the complaint fails to state a claim
under the EEOC regulations because complainant failed to show that he
suffered harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. See Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994). We further
find that the claims, even if proven to be true and viewed in a light
most favorable to complainant, would not indicate that complainant has
been subjected to harassment that was sufficiently severe or pervasive
to alter the conditions of employment. See Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997). Furthermore,
the Commission determines that the alleged agency action was not of a
type reasonably likely to deter complainant or others from engaging into
protected activity.
Moreover, we find that in regard to claim (c), the Commission has
held that it is precluded from reviewing the substance of security
clearance decisions, or the validity of the security requirement itself.
See Thierjung v. Department of Defense, EEOC Request No. 05880664
(November 2, 1989). In the instant case, complainant claimed that
on January 16, 2007, he was informed that his access to classified
information was suspended. Under these circumstances, we find that
complainant has failed to state a claim that can be remedied under the
administrative EEO complaint process.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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
January 8, 2009
__________________
Date
2
0120071987
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071987
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