John D. Sujat, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 14, 2007
0120064744 (E.E.O.C. Nov. 14, 2007)

0120064744

11-14-2007

John D. Sujat, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.


John D. Sujat,

Complainant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120064744

Agency No. ARCENE06MAY0222

DECISION

Complainant filed a timely appeal with this Commission from the

agency's decision dated July 19, 2006, dismissing his complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission finds

that complainant's complaint was properly dismissed pursuant to 29

C.F.R. � 1614.107(a)(1) for failure to state a claim.

In a complaint dated July 12, 2006, complainant, a GS-0820M-09 Mechanical

Engineer Technician at the Westover Air Force Reserve Base in Chicopee,

Massachusetts, alleged that he was subjected to discrimination on the

basis of age (D.O.B. 08/03/51) and in reprisal for prior protected EEO

activity [arising under the ADEA and the Rehabilitation Act] when:

(1) On April 21, 2006, complainant's second line supervisor (S2) stated

that they had considered lowering his performance appraisal based on

complainant's previous contact with the U.S. Army Corps of Engineers

(Hereinafter "Corps");

(2) A non-supervisory Corps employee (C1) working at Westover had made

inflammatory, slanderous remarks regarding complainant's character on

a number of occasions;

(3) C1 had falsely stated that there was a restraining order against

complainant;

(4) C1 had created problems undermining the Entry Control project that

complainant was working on by telling his supervisors that the workmanship

was inferior and that there were problems;

(5) C1 falsely informed complainant's supervisor that complainant was

contacting the Base Safety Office regarding unsafe workmanship;

(6) C1 had made a contact with others in complainant's office claiming

inferior workmanship on complainant's projects; and

(7) On June 22, 2006, S2 removed complainant from the Munitions Storage

Project, a project with which the Corps was involved.

In its FAD, the agency found that complainant was not an employee or

applicant for employment with the United States Army Corps of Engineers.

The FAD found that complainant was employed by the Department of Defense,

U.S. Air Force Reserves, Westover Air Force Base, Massachusetts.1

The FAD found therefore, that the complaint was subject to dismissal

because complainant did not suffer direct, personal deprivation at the

hands of the Department of the Army, which is where he filed his formal

complaint.

On appeal, complainant states that it was the EEO Counselor's duty in the

Notice of Final Interview, to inform him of the proper official with whom

to file a formal complaint. He states that he filed a formal complaint

with the Department of the Army based on the information provided in

the Notice. Second, complainant contends that as a former employee, he

does have a complaint against the Army Corps of Engineers for retaliatory

conduct by Army Corps personnel who harassed, humiliated and attempted

to discredit and ruin his reputation as a result of his prior EEO actions

and settlement agreements with that agency.

In response, the agency first concedes that a former employee can file a

reprisal action, citing Robinson v. Shell Oil Company, 519 U.S. 337, 117

S.Ct. 843 (1997). The agency contends however, that complainant failed

to state a claim of reprisal as there is no evidence that the agency took

actions against complainant that could be considered materially adverse

to a reasonable employee. The agency also contends that there is no

causal connection between the challenged actions and complainant's prior

protected EEO activity (which occurred most recently on May 13, 2004).

Specifically, as to issues (2) and (4) the agency contends that

complainant failed to indicate the content of the alleged inflammatory

comments and negative feedback, the recipient(s) of the comments, when

the alleged comments were made, and/or in what context they were made.

As to issue (3), the agency contends that the agency did nothing more

than respond to complainant's managers' inquiries about whether there was

a restraining order against complainant. As to issue (5), the agency

contends that in July 2005, an anonymous individual generated a safety

report which identified unsafe practices. The agency explains that C1

asked complainant's supervisor whether complainant had generated the

report, and the supervisor merely replied that he could not confirm

this information.

The agency further contends that as to issues (1) and (7), complainant

cannot and has not shown that any retaliatory conduct by Corps personnel

affected or resulted in these actions being taken against complainant.

As to issue (1) concerning the performance appraisal, the agency points

out that the appraisal was completed solely by complainant's Air Force

supervisors, not the Corps, and although complainant's managers had

stated that they might lower the evaluation in the performance area

"working with others" they did not ultimately do so. As to issue (7),

the agency asserts that the Corps played absolutely no role in the

decision concerning removing the assignment from complainant.

For the reasons provided by the agency in its reply to the instant appeal,

we AFFIRM the agency's dismissal of the formal complaint.2

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

November 14, 2007

__________________

Date

1 The agency contends that complainant terminated his employment with

the Army Corps of Engineers in 2004, and since that time has worked for

the Department of the Air Force at the Westover Air Force Reserve Base.

Complainant does not dispute this assertion.

2 We note that even considering the incidents that can be remotely

attributable to the Department of the Army within a retaliatory harassment

framework, complainant has not alleged harassment severe enough to be

considered unlawful.

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0120064744

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036