David C. Jackson, Complainant,v.Samuel Bodman, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionSep 9, 2007
0120072970 (E.E.O.C. Sep. 9, 2007)

0120072970

09-09-2007

David C. Jackson, Complainant, v. Samuel Bodman, Secretary, Department of Energy, Agency.


David C. Jackson,

Complainant,

v.

Samuel Bodman,

Secretary,

Department of Energy,

Agency.

Appeal No. 0120072970

Agency No. WAPA061004UGP1

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts for de novo

review, complainant's appeal from the agency's May 11, 2007 final

decision concerning his equal employment opportunity (EEO) complaint

alleging employment discrimination in violation of Section 501 of

the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29

U.S.C. � 791 et seq. Complainant, an Apprentice Electrician at the Havre

Maintenance Office in Havre, Montana alleged that the agency discriminated

against him on the bases of disability1 and reprisal,2 when:

1. He was not allowed to work with the Electrician group or earn overtime

pay in May 2006, at the Miles City Converter station while on light duty

(due to a tear of rotator cuff), although another individual, while

on light duty, was allowed to work with the Electrician group and earn

overtime pay; and

2. He has been subjected to a continuing violation hostile work

environment since 2002.3

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the agency's final decision

because the preponderance of the evidence of record does not establish

that discrimination occurred.

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

September 9, 2007

__________________

Date

1 Complainant describes his disability as tinnitus, a "very, very

pronounced" ringing in his ears.

2 Complainant alleges reprisal for reporting that other co-workers

were drinking beer on-the-job and for an incident which occurred

when a 400,000 candlewatt light was shined in his eyes. We find that

complainant has not alleged retaliation that is covered by any statute

that the Commission enforces.

3 This claim includes allegations that his co-workers looked away from him

when speaking; mumbled and/or failed to articulate words; and, distanced

themselves from complainant. Complainant asserts that he became unable

to rely on the Journeyman Electricians to increase his knowledge of

the trade. In addition, complainant asserts that he was harassed by

an incident wherein he and a co-worker were required to trade trucks,

and the co-worker was rude, caustic and belligerent.

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0120072970

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036