01A40366_r
03-31-2004
Steve McNeill, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Steve McNeill v. Department of the Air Force
01A40366
March 31, 2004
.
Steve McNeill,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A40366
Agency No. EH0A00002
Hearing No. 380-A0-8213X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final order concerning 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
The record reveals that complainant, a former Civil Engineer, at the
agency's Environmental Flight, 354th Civil Engineering Squadron (CES) at
Eielson Air Force Base (AFB) in Alaska, filed a formal EEO complaint on
January 7, 2000, alleging he was subjected to discrimination on the basis
of reprisal for prior EEO activity when agency officials openly mocked
his web page through internal agency e-mail in or about July 1999.<1>
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administration
Judge (AJ). The agency thereafter filed a Motion to Dismiss complainant's
complaint on September 26, 2001, claiming that the complaint fails to
state a claim. On October 25, 2001, the AJ granted the agency's motion to
dismiss and issued a decision without a hearing, dismissing the complaint
for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
In his decision, the AJ found that complainant failed to show that he
suffered any personal loss or injury with respect to a term, condition or
privilege of employment as a result of the alleged discriminatory event.
Subsequently, the agency implemented the AJ's decision in a final order
dated December 20, 2001.
After a careful review of the record, the Commission finds that the
agency's final action implementing the AJ's dismissal was proper.
The record supports a determination that complainant was not rendered
aggrieved by the matter raised in the instant complaint. Accordingly,
the agency's final order implementing the AJ's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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, Director
Office of Federal Operations
March 31, 2004
__________________
Date
1The record reveals that complainant was removed from agency employment
on or about January 26, 1999.