0120073198
01-03-2008
William V. Sowell, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
William V. Sowell,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120073198
Agency No. 076312600559
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 11, 2007, 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., 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 April 17, 2007, complainant alleged that he was
subjected to discrimination on the bases of race (African-American),
national origin (African-American), color (Black), disability
(unspecified), age (D.O.B. 06/11/49), and reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964. Specifically,
the agency identifies complainant's claims as follows:
a. On November 30, 2006 complainant was at the cubicle of another
employee when three agency officials entered to meet with the employee.
Complainant alleges that he was ordered by the agency officials to
return to his cubicle in a manner that was humiliating, disrespectful
and harassing;
b. An agency employee was terminated in reprisal for testifying on
complainant's behalf in a 2002 EEOC hearing;
c. All agency employees who ever testified in complainant's favor during
the EEO process were either forced into retirement or otherwise removed
from their positions with the agency;
d. The agency's Commanding EEO Officer failed to implement agency policy
or EEO laws with respect to a diversity policy in regards to a class
complaint previously filed by complainant;
e. The agency's Deputy EEO Officer failed to implement agency policy
or EEO laws with respect to medical documentation regarding a class
complaint previously filed by complainant;
f. The agency's EEO Program Coordinator failed to implement agency
policy or EEO laws with respect to workplace violence concerning a class
complaint previously filed by complainant;
g. An agency official failed to implement agency policy or EEO laws with
respect to a medical statement from complainant's doctor relating to a
class complaint previously filed by complainant;
h. An agency official failed to implement agency policy or EEO laws
concerning a class complaint previously filed by complainant;
i. An agency official failed to implement agency policy or EEO laws
with respect to a request for medical documentation in connection with
a class complaint previously filed by complainant;
j. An agency official failed to implement agency policy or EEO laws with
respect to written communication concerning a class complaint previously
filed by complainant; and
k. An agency official failed to implement agency policy or EEO laws with
respect to written communication about the "Kneymeyer curve" in regards
to a class complaint previously filed by complainant.
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).
With respect to claims a, b, and c, the Commission finds that the
complaint fails to state a claim under the EEOC regulations because
complainant failed to show that he suffered any personal harm or loss
with respect to a term, condition, or privilege of his employment for
which there is a remedy. See Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). Therefore, claims a, b, and c
are properly dismissed in accordance with EEOC Regulation 29 C.F.R. �
1614.107(a)(1) for failure to state a claim.
The Commission finds that complainant's remaining claims e-k allege his
dissatisfaction with the processing of a previously filed class complaint.
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides for the dismissal of
claims that allege dissatisfaction with the processing of a previously
filed complaint. Moreover, the Commission notes that in complainant's
statement on appeal, he indicates that his complaint concerns matters
previously addressed by the agency. In that regard, we find that claims
e-k of the instant matter are properly dismissed in accordance with EEOC
Regulation 29 C.F.R. � 1614.107(a)(8).
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
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
January 3, 2008
__________________
Date
2
0120073198
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120073198