01a53638
08-05-2005
Chester Campbell, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Chester Campbell v. Department of the Navy
01A53638
08-05-05
.
Chester Campbell,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A53638
Agency No. 04-4523A-09011
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the
untimely filing of the formal complaint, and 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim. In his complaint, complainant alleged that
he was subjected to discrimination on the basis of disability (displaced
hip and herniated disc) when, (1) on August 20, 2002, Shop 06M placed him
in the injured workers program instead of placing him within Shop 06M; and
on the basis of reprisal for prior EEO activity when, (2) on September 22,
2004, he was counseled not to use e-mail to communicate with his foreman.
With respect to claim (1), the record discloses that complainant's
attorney received the notice of right to file a formal complaint on
July 2, 2004. Although the notice indicated that complainant had
to file a formal complaint within fifteen (15) calendar days of its
receipt, complainant did not file his formal complaint until August 4,
2004, which is beyond the limitation period. We note that 29 C.F.R. �
1614.605(d) provides that service of all official correspondence shall
be made on the attorney and complainant, but time frames for receipt of
materials shall be computed from the time of receipt by the attorney.
On appeal, complainant has not offered any justification to warrant
an extension of the time limit for filing the complaint. Accordingly,
the Commission finds that the agency properly dismissed claim (1).
With respect to claim (2), 29 C.F.R. �1614.107(a)(1) requires an
agency to dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(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). Here, while the record reflects
that the agency counseled complainant not to use e-mail to communicate
with his foreman, we do not find that this action rendered complainant
aggrieved or that it had a chilling effect on complainant's use of the
EEO process. We therefore find that the agency properly dismissed claim
(2) for failure to state a claim.
For the foregoing reasons, the agency's final decision dismissing
complainant's complaint 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
___08-05-05_______________
Date