0120092084
08-03-2009
Richard S. Omar, Sr., Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Richard S. Omar, Sr.,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092084
Agency Nos. 200406522009101433 and 200406522009101004
DECISION
Complainant filed a timely appeal with this Commission from two agency
decisions, both dated March 24, 2009 dismissing his complaints 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.
Upon review, the Commission finds that both complaints were properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim.
In an EEO complaint filed on January 25, 2009 ((Agency
No. 200406522009101004) and another filed on February 24, 2009 (Agency
No. 200406522009101433), complainant alleged that he was subjected to
discrimination on the bases of race (African-American), religion (Islam),
and reprisal for prior protected EEO activity when: (1) on December 8,
2008, he was not invited to attend an award ceremony to receive his
thirty-year retirement service award and pin, and (2) on January 23,
2009, he was not given a monetary award.
Briefly, complainant retired from the agency on January 2, 2009. It is not
clear whether complainant was at work during December 2008. The agency
had an awards ceremony on December 8, 2008, and gave out service pins.
It is undisputed that complainant was not invited to attend. However,
on January 10, 2009, the agency had a small ceremony for complainant
where he received his service pin and retirement certificate. The record
contains documentation, and complainant does not dispute, that an award
was approved for complainant on January 16, 2009, but the actual award
check not mailed to him until March 3, 2009.
Based on these facts, the Commission affirms that agency's determination
that the complaints at issue fail to state a claim under the EEOC
regulations because complainant failed to allege 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). Accordingly, the agency's
final decisions dismissing complainant's complaints are 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
August 3, 2009
__________________
Date
2
0120092084
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120092084