0120082843
11-10-2008
Arthur L. Brown, Complainant, v. Lurita Alexis Doan, Administrator, General Services Administration, Agency.
Arthur L. Brown,
Complainant,
v.
Lurita Alexis Doan,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120082843
Agency No. 08-R9-PBS-SF-07
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 27, 2008, 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 8, 2008, complainant
alleged that he was subjected to discrimination on the bases of race
(African-American), sex (male), color (black), disability (unspecified),
age (47), and in reprisal for prior protected EEO activity under Title
VII, the Age Discrimination in Employment Act and the Rehabilitation
Act when:
1. On January 22, 2008, complainant became aware that he and his work
station were being monitored and investigated.
2. On February 22, 2008, an agency official denied a request for
information on behalf of complainant submitted by the American Federation
of Government Employees.
In its final action, the agency determined with regard to claim (1)
that the request for complainant to submit a leave slip for allegedly
leaving work one hour early was an oversight committed by complainant's
supervisor. The agency noted that once the supervisor verified that she
had previously granted complainant one hour of official time for January
22, 2008, the supervisor immediately extended complainant an apology on
January 23, 2008. The agency determined that the alleged monitoring and
investigation of complainant and his work station was an isolated incident
that caused complainant to suffer no direct tangible harm to a term,
condition or privilege of his employment. With regard to claim (2), the
agency stated that complainant did not show how the denial of a request
for information resulted in a direct tangible harm to a term, condition
or privilege of his employment. The agency further stated that the
claim was a collateral attack against the union grievance process.
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because complainant failed to show that he suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Further, with regard to
claim (2), the request for information pertained to a grievance filed
on behalf of complainant. We find that this claim therefore constitutes
an impermissible collateral attack against the grievance process.
Accordingly, the agency's final action dismissing complainant's complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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
November 10, 2008
__________________
Date
2
0120082843
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120082843