0120101462
07-20-2010
Matt D. Fuller, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Matt D. Fuller,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120101462
Agency No. ARTACOM09DEC05453
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated January 12, 2010, dismissing his 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.
BACKGROUND
In his complaint, Complainant alleged that the Agency subjected him to
discrimination on the bases of race (Black), color (Dark), and reprisal
for prior protected EEO activity under a statute that was unspecified
in the record when:
1. On June 5, 2009, an Agency Management Official (MO) entered into a
settlement agreement with Complainant in bad faith.
The Agency dismissed the claim pursuant to 29 C.F.R. � 1614.107(a)(8).
The Agency noted that the settlement agreement in question was the
result of a previously-filed complaint and found that Complainant's
complaint expressed dissatisfaction with the processing of a previously
filed complaint and hence should be dismissed pursuant to �107(a)(8).
In addition, the Agency notified Complainant that if he had any
concerns about the settlement agreement he should notify the Agency's
EEO Complaints and Compliance Review Agency (EEOCCRA) in writing pursuant
to the agreement.
On appeal, Complainant contends that he has experienced new incidents
of harassment and requests that his prior complaint be reopened.
The Agency first argues that Complainant's appeal should be dismissed
as untimely-filed. The Agency next argues that any breach claim is
untimely and that the Agency did not breach the agreement. Finally,
the Agency argues that Complainant fails to state a claim.
ANALYSIS AND FINDINGS
Regarding the Agency's argument that the appeal was untimely-filed, we
note that the FAD is dated January 12, 2010 and Complainant states that
he received it on January 20, 2010. The Appeal was mailed on February 19,
2010 and hence we find that Complainant's appeal is not untimely. To the
extent Complainant's claim can be construed as a claim of discrimination,
we find that the Agency correctly dismissed the complaint for failure
to state a claim. 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). Complainant has not shown how
he incurred a present harm or loss.
With regard to the breach allegation, we note initially that the FAD did
not address the breach claim. In the interests of judicial economy,
we shall view the Agency's Appeal Brief as constituting the FAD on
the breach allegation. Furthermore, we find that Complainant's breach
allegation is untimely and we affirm the FAD. Notwithstanding clause
seven of the agreement, which states that allegations of breach should
be made to EEOCRA, under 29 C.F.R. � 1614504(a), allegations of breach
should be made to the EEO Director. In its Appeal Brief/FAD, the Agency
concedes that Complainant contacted the EEO Director alleging breach.
Such contact, however, was untimely. Complainant indicates that he
learned of the alleged breach on October 27, 2009 but he did not notify
the EEO Director until November 30, 2009, which is three days beyond
the limitation period.
For the above reasons, we AFFIRM both FADs.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (Z0610)
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
July 20, 2010
__________________
Date
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0120101462
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101462