01a03563
07-21-2000
Richard Sumner, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Richard Sumner v. Department of the Navy
01A03563
07-21-00
.
Richard Sumner,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A03563
Agency No. 00-00183-058
DECISION
On April 18, 2000, Richard Sumner (hereinafter referred to as complainant)
filed a timely appeal from the April 13, 2000, final decision of the
Department of the Navy (hereinafter referred to as the agency) concerning
his complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The appeal is timely filed (see 64 Fed. Reg. 37,644, 37,659 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.402(a)))<1>
and is accepted in accordance with 64 Fed. Reg. 37,644, 37,659 (to be
codified as 29 C.F.R. � 1614.405). For the reasons that follow, the
agency's decision is AFFIRMED.
The issue presented in this appeal is whether the agency properly
dismissed his complainant for failure to state a claim.
Complainant worked as a Supervisory Pharmacist, GS-12, at the Medical
Center in Portsmouth, Virginia. Complainant and the agency had entered
into a settlement agreement (SA) on December 7, 1995, which required the
agency to keep the "pharmacy...free from any harassment." In the formal
complaint at issue herein, he alleged discrimination based on reprisal<2>
for three events between January 8 and January 12, 2000. Specifically,
he complained that two Pharmacy Technicians (PT) were assigned to the
night shift against his recommendation; that another PT yelled at him
and put her hand over his face; and that a superior questioned him as
to why he wanted to meet with a superior manager. The agency dismissed
the complaint on the grounds that it failed to state a claim.
Initially we note that the agency properly treated the claims herein
as a new complaint. Our regulations required that allegations that
subsequent acts of discrimination violate a SA must be processed as
separate complaints. 29 C.F.R. � 1614.504(c). EEOC Regulation 64
Fed. Reg. 37,644, 37,656 (to be codified and hereinafter referred to
as 29 C.F.R. �1614.107(a)(1)) allows an agency to dismiss a complaint
that fails to state a claim within the meaning of 29 C.F.R. �1614.103.
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 or employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). Here, we agree with the agency that
complainant is not an aggrieved employee with regard to any of the
events identified by complainant. Complainant's argument that he
suffered emotional harm is insufficient to support his complaint where
he does not allege a term or condition of his employment. Accordingly,
the agency's decision to dismiss the complaint for failure to state a
claim was proper.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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, Acting Director
Office of Federal Operations
__07-21-00________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Since May 1998, complainant had filed eight other complainants.