01991680
11-05-1999
Ram M. Ramanujam, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Ram M. Ramanujam v. Department of the Air Force
01991680
November 5, 1999
Ram M. Ramanujam, )
Appellant, )
)
)
v. ) Appeal No. 01991680
) Agency No. HPOF98200
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
On December 21, 1998, appellant filed a timely appeal of a November 24,
1998 final agency decision, which was later amended on February 22,
1999, dismissing two allegations in his complaint, pursuant to 29
C.F.R. �1614.107(a), for failure to state a claim.
In its final decision, the agency identified allegations (a) through
(v) of appellant's November 5, 1998 complaint which was based on race
(Indian), national origin (Asian), color (brown), religion (non-latter
day saint/Mormon), and in reprisal for prior EEO activity, concerning
promotions, job assignments, workload, duties and responsibilities,
meetings, and working conditions which occurred from September 1996,
through September 1998. Specifically, in allegations (q) and (s),
appellant indicated that:
On September 18, 1998, management of the Hill Top Times (Base
Newspaper) ran an article about several base civilian and military
members participating in the "Mormon Tabernacle) Choir that allegedly
communicates to HAFB employees and their family members a succinct
message that "Mormonism" was in their best interest for promotions,
perks, privileges, which he believed was a violation of the "First
amendment"; and
On September 23, 1998, HAFB management allegedly: (1) overtly and
covertly excluded, ethnic, racial, and religious minorities from hiring,
promotions, retention, and perks; (2) generally excluded racial and
religious minorities from performance awards, bonuses and accolades;
(3) allowed some management officials to make snide and derogatory
remarks/comments and racial jokes, and to use the "N" word against
racial and religious minorities; (4) assigned trivial duties and gave
generally low appraisal ratings to racial and religious minorities
based on facially neutral but deliberately construed, and poorly defined
criteria; and (5) created lucrative positions, promotion opportunities,
and secretly promoted cronies to the detriment of racial and religious
minorities.
The agency dismissed allegations (q) and (s) on the grounds that they
failed to demonstrate that appellant suffered personal harm as a result
of the agency's actions. The agency accepted the remaining allegations
in the complaint for investigation.<1>
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
In order to establish standing initially under 29 C.F.R. �1614.103, a
complainant must be either an employee or an applicant for employment of
the agency against which the allegations of discrimination are raised.
In addition, the allegations must concern an employment policy or
practice which affects the individual in his/her capacity as an employee
or applicant for employment. The agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he/she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age, or disability. 29 C.F.R. ��1614.103
and .106(a). The Commission's Federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The record indicates that allegation (q) involved a religious comment
stated in the agency newspaper article. There is no evidence in the
record that appellant sustained any personal harm or loss which affected a
term, condition, or privilege of his employment as a result of the alleged
comment. The Commission has held that a remark or comment, unaccompanied
by concrete action, is not a direct and personal deprivation sufficient
to render an individual aggrieved. See Henry v. United States Postal
Service, EEOC Request No. 05940695 (February 9, 1995). Thus, we find
that allegation (q) failed to state a claim.
The record indicates that allegation (s) involved discriminatory
employment practices on the part of the agency. Although appellant
indicated that September 23, 1998, was the date of incident, he did
not identify any specific discriminatory acts or events thereon, which
allegedly affected a term, condition, or privilege of his employment.
Furthermore, it appears that the subject matters were more specifically
indicated in the allegations in the complaint, which were accepted by the
agency for investigation. On appeal, appellant provides no persuasive
evidence in the record that he sustained any personal injury or harm as
a result of the alleged incidents of allegations (q) and (s).
Accordingly, the agency's final decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
November 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 In its November 24, 1998 final decision, the agency also dismissed
allegations (c), (f), and (v) on the grounds of untimely EEO contact.
Subsequently, the agency rescinded its dismissal of allegations (c), (f),
and (v) and reinstated these allegations for processing. Consequently, we
will not address the propriety of the agency's disposition of allegations
(c), (f), and (v) herein.