01A31674_r
05-29-2003
Daniel E. Ludden, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Daniel E. Ludden v. Department of Defense (Defense Finance & Accounting
Service)
01A31674
May 29, 2003
.
Daniel E. Ludden,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 01A31674
Agency No. DFAS-IN-SL-03-005
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 13, 2002, dismissing 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (Caucasian), sex (male), and color (white) when
management subjected him to a hostile work environment when:
1. In the spring of 2001, management gave complainant a large contract
to reconcile which had a NULO;
2. In December 2001, management told complainant to check the other
accountants work on their 60 day old NULOs;
3. In April 2002, management gave complainant a �special project�
to input all the FMS JVs for all commands which involved hundreds of
transactions;
4. In May 2002, management gave complainant a written reprimand for
opening an emergency door;
5. In May 2002, management gave complainant a �fully successful�
performance evaluation for the period May 1, 2001 through April 30,
2002; and
6. In September 2002, management verbally accused complainant of not
completing customer service requests for TACOM, an ACALA adjustment,
a couple of NULOs and FMS JVs.
The agency dismissed claims 1 through 5 pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact. Additionally,
the agency dismissed claim 6 pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim.
Failure to state a claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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,
.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).
We concur with the agency and find that complainant is not aggrieved as a
result of the act alleged in claim 6. Nothing in the record indicates
that complainant suffered any 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). Moreover, we do not find that the complaint has been
subjected to harassment that was sufficiently severe or pervasive to
alter the conditions of his employment.
Untimely Contact with an EEO Counselor
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. The Commission's regulations, however,
provide that the time limit will be extended when the complainant shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by circumstances
beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or the
Commission. See 29 C.F.R. � 1614.105(a)(2).
The record discloses that the alleged discriminatory events in claims 1
through 5 occurred between the spring of 2001 and May 2002. We concur
with the agency and find that complainant did not initiate contact with
an EEO Counselor until October 2, 2002, which is beyond the forty-five
(45) day limitation period. Complainant has presented no persuasive
arguments or evidence on appeal warranting an extension of the time
limit for initiating EEO Counselor contact.<1>
Accordingly, 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
May 29, 2003
__________________
Date
1Since we are affirming the agency's dismissal of claim 4 on the
grounds of untimely counselor contact, we will not address the agency's
alternative grounds for dismissal, i.e., that complainant first raised
this same matter through a negotiated grievance procedure.