01A11744_r
10-12-2001
Dudley Mallory, Jr., Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Dudley Mallory, Jr. v. Department of the Air Force
01A11744
October 12, 2001
.
Dudley Mallory, Jr.,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A11744
Agency No. RX1M00304
DECISION
Upon review, the Commission finds that the agency's decision dated
November 3, 2000, dismissing complainant's complaint for failure to
state a claim and/or stating the same claim that was already brought
before the agency and had since been withdrawn by complainant is proper
pursuant to 29 C.F.R. � 1614.107(a)(1). In his complaint dated October
8, 2000, complainant alleged that on June 23, 2000, he was harassed by
his supervisor by threatening complainant with disciplinary action for
improper use of refrigerant, improper tool ordering, and leaving the job
site without permission; and he was denied training. With regard to the
alleged threats or improper comments from the supervisor, the Commission
has consistently held that a remark or comment unaccompanied by concrete
action is not a direct and personal deprivation sufficient to render an
individual aggrieved for the purposes of Title VII. Henry v. USPS, EEOC
Request No. 05940695 (February 9, 1995). There is no evidence in the
record that complainant was subjected to an actual disciplinary action
nor an adverse action as a result of the alleged threats or comments.
With regard to the alleged denial of training, the agency stated in its
decision that complainant stated the same claim in his prior complaint
which had subsequently been resolved and withdrawn by complainant.
The record, undisputed by complainant, indicates that complainant
previously filed an informal complaint, Agency No. RX1M00-207, concerning
the denial of training occurring on April 18, 2000, which was subsequently
settled through a settlement agreement. It is noted that complainant did
not indicate any specific incident date concerning the alleged denial of
training other than the April 18, 2000 incident date during the instant
complaint processing. On appeal, complainant, other than filing a notice
of appeal, does not raise any new contentions concerning the alleged
matter. Accordingly, the agency's final decision is hereby 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
October 12, 2001
__________________
Date