Juvon S. Lewis, Complainant,v.Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.

Equal Employment Opportunity CommissionMar 4, 2010
0120100485 (E.E.O.C. Mar. 4, 2010)

0120100485

03-04-2010

Juvon S. Lewis, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.


Juvon S. Lewis,

Complainant,

v.

Gary Locke,

Secretary,

Department of Commerce,

(Bureau of the Census),

Agency.

Appeal No. 0120100485

Agency No. 096300758D

DECISION

Upon review, we find that the agency's decision, dated November 5,

2009, properly dismissed complainant's complaint for failure to state a

claim pursuant to 29 C.F.R. � 1614.107(a)(1). The record indicates that

complainant, an Assistant Manager for Technology with the Montgomery,

Alabama Local Census Office, filed his complaint dated July 23, 2009,

alleging discrimination based on age (25 years old), race (African

American), sex (male), and in reprisal for prior EEO activity1 when

his coworker and his supervisor harassed him on June 19, 2009, when the

coworker initiated a confrontation with him and the supervisor sent him

home.

The agency stated and we agree that complainant did not sustain any

personal harm as a result of the supervisor's action. Specifically, we

note complainant did not allege that he lost any pay as a result of the

alleged incident. Moreover, the record does not show that complainant

suffered any disciplinary action as a result of being sent home on June

19, 2009. We find that the agency also properly dismissed complainant's

age discrimination since he was 25 years old at the time of the alleged

incident. Accordingly, the agency's final decision dismissing the

complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

3/4/10

__________________

Date

1 On appeal, the agency submits that it mistakenly did not include the

basis of retaliation in its final decision.

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2

0120100485

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013