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