0120093114
01-12-2010
Lawerence Battle, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Lawerence Battle,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120093114
Agency No. 2009-22647-FAA-02
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 26, 2009, dismissing his formal complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
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.
The record reflects that complainant was terminated by the agency in
February 2000, and has attempted to return to the agency under the
Federal Aviation Administration's (FAA) Return to Work (RTW) Program.
On May 18, 2009, complainant, filed the instant formal complaint.
Therein, complainant alleged that he was subjected to discrimination
on the bases of race, sex, color, disability, age, and in reprisal for
prior EEO activity when:
1. FAA Human Resources (HR) officials failed to take action on his
request to return to work;
2. FAA HR officials failed to respond to his request to return to work;
3. an FAA HR official told FAA Security that he had accused her of being
the source of all his problems;
4. on September 24, 2008, an HR official sent an email attacking his
integrity;
5. an FAA HR official continues to deny his priority consideration status
per a statement in her affidavit;
6. an FAA HR official has attempted to cover-up false statements made
about him by the FAA internal security manager;
7. both the FAA HR official and internal security manager have
attempted to cover up an HR official's alleged disclosure of his medical
information;
8. he learned that on March 4, 2009, an agency official contacted another
employee about the return to work program but refuses to talk with him;
9. the Chief of Information Officer made false statements regarding a
"non-disciplinary adverse action" against him in a letter dated January
27, 2009; and
10. on November 14, 2008, an FAA attorney submitted defamatory statements
made by the internal security manager as supporting evidence to dismiss
his EEO complaint.
In its June 26, 2009 final decision, the agency dismissed complainant's
complaint for failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1). Specifically, the agency found that complainant failed
to show he suffered a personal loss or harm to a term, condition or
privilege of his employment. The agency further stated that in regard
to claims 3 - 7 and 9 - 10, complainant alleged that agency officials
made false and defamatory statements about him. The agency concluded
that a review of the record reflects that the statements were made in
the context of affidavits in prior EEO proceedings. The agency further
stated that the Commission has found that the assertion that an agency
official has lied during the course of a prior EEO proceeding does not
state a new claim for relief.
The agency also dismissed claims 1, 2 and 8 on the grounds of raising
the same claims that are pending or have been decided by the agency or
the Commission, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically,
the agency stated that complainant raised the same claims in at least
three prior EEO complaints, identified as Agency Nos. 2007-21058-FAA-02,
2006-204272-FAA-02 and 2009-22463-FAA-02.
Claims 3 - 10
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
Upon review, the Commission finds that complainant has failed to allege
facts sufficient to assert harm or loss to a term, condition, or privilege
of his employment to render him aggrieved under EEOC regulations.
Moreover, the alleged agency actions were not of a type reasonably likely
to deter complainant or others from engaging in protected activity.
Therefore, we find that the agency properly dismissed claims 3 - 10 for
failure to state a claim.
Because we affirm the agency's dismissal of claim 3 for the reason stated
herein, we find it unnecessary to address alternative dismissal grounds
(i.e. stating the same claim).
Claims 1 -2
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
It has long been established that "identical" does not mean "similar."
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident, and parties.
See Jackson v. Department of the Air Force, EEOC Appeal No. 01955890
(April 5, 2006) rev'd on other grounds, EEOC Request No. 0560524 (April
24, 1997).
The Commission notes that the record contains a copy of the acknowledgment
of complainant's complaint for Agency No. 2007-21058-FAA-02. Therein,
the agency accepted complainant's allegation that he was discriminated
against on the bases of race, sex, color, disability, age, and in
reprisal for prior EEO activity when the HR "ignored, failed and
refused to take actions concerning his November 7, 2006 and November
22, 2006 correspondence addressing his returning to work under the FAA
RTW Program."
The record also contains a copy of the acknowledgment of complainant's
complaint for Agency No. 2006-204272-FAA-02. Therein, the agency
accepted complainant's allegation that he was discriminated against
on the bases of race, sex, color, disability, age, and in reprisal
for prior EEO activity when "the agency failed to give complainant due
consideration under the Federal Aviation Administration (FAA)/Office of
Workers' Compensation Program (OWCP)/Office of Personnel Management (OPM)
Return to Work policies, procedures, regulations and the FAA Return to
Work Program when contacted by the Department of Labor (DOL); therefore
subjecting him to disparate treatment from similarly situated employees
based on his prior protected activity." Therefore, we find that the
agency properly dismissed claims 1 - 2 for stating the same claim.
Because we affirm the agency's dismissal of claims 1 -2 for the reason
stated herein, we find it unnecessary to address alternative dismissal
grounds (i.e. failure to state a claim).
Accordingly, the agency's dismissal of the instant 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
January 12, 2010
__________________
Date
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0120093114
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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