Preston L. Smith, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionMar 12, 2009
0120090554 (E.E.O.C. Mar. 12, 2009)

0120090554

03-12-2009

Preston L. Smith, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.


Preston L. Smith,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 0120090554

Agency No. HS08CIS005564

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated November 10, 2008, dismissing his 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 Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq.

In a complaint dated March 26, 2008, complainant alleged that he was

subjected to discrimination on the bases of race (African-American), sex

(male), color (light skinned), disability (mental), and reprisal for prior

protected EEO activity under Title VII of the Civil Rights Act of 1964,

when the agency incorrectly dated his SF-50.

The record indicates that complainant resigned from the agency on October

18, 2007. It is undisputed that his SF-50 was improperly processed to

show a separation date of October 18, 2007, rather than October 20, 2008

(the last day of the pay period). Complainant started a job with the

Department of State on October 21, 2007, and was terminated effective

March 17, 2008. Complainant alleged that the error in his separation date

from the agency adversely affected him because the termination letter

from the Department of State indicated he had no appeal rights to the

Merit Systems Protection Board (MSPB) because of a "break in service"

between his employment with the agency and his employment with State.

The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)

for failure to state a claim. The instant appeal followed.

The Commission finds 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). To the extent that complainant is

challenging his March 2008 termination itself, that should be addressed

with the Department of State. While complainant argues that he was

harmed by getting the improper appeal rights to the MSPB, the record

establishes and he concedes that the agency corrected the SF-50 when

informed of the error, and he filed a timely appeal from his termination

with the MSPB on April 1, 2008. Therefore, there is no indication that

he could prove any legally cognizable harm.

Accordingly, 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

March 12, 2009

__________________

Date

2

0120090554

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

3

0120090554