Noe F. Milano, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 3, 2002
01A23198_r (E.E.O.C. Oct. 3, 2002)

01A23198_r

10-03-2002

Noe F. Milano, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


Noe F. Milano v. Department of the Navy

01A23198

October 3, 2002

.

Noe F. Milano,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A23198

Agency No. DON-FY02-69232-004

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated May 1, 2002, 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. In his

complaint, complainant alleged that he was subjected to discrimination

on the basis of reprisal for prior EEO activity when:

On October 15, 2001, a female GS-09 co-worker was assigned to work in a

housing area where only GS-07 graded employees worked. A male co-worker

was not required to rotate to work in the housing areas at the Point

Mugu site.

Complainant was not selected for promotion to the GS-09 grade level in

December 2000.

The agency dismissed claim 1 pursuant to 29 C.F.R. � 1614.107(a)(1)

for failure to state a claim. The agency found that complainant had

elected not to participate in a work rotation system and suffered no

loss or harm by the rotation/non-rotation of his co-workers. The agency

dismissed claim 2 pursuant to 29 C.F.R. � 1614.107(a)(1), finding that

complainant raised the identical claim in a prior complaint, agency case

number DON-FY01-69232-016.

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). The record confirms

that complainant chose to not participate in the work assignment rotation

system offered to him. We concur that complainant has not shown any harm

or loss as a result of the participation of his co-workers in the system.

The agency's dismissal of claim 1 was therefore proper.

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. Review

of the record confirms that complainant raised claim 2, non-selection for

promotion in December 2000, in his complaint dated May 3, 2001, agency

case number DON-FY01-69232-016, a copy of which appears in the record.

The agency's dismissal of claim 2 was therefore also proper.

We therefore AFFIRM the agency's dismissal of the complaint.

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

October 3, 2002

__________________

Date