01A30977_r
09-30-2003
Carroll J. Andre, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Carroll J. Andre v. Department of the Interior
01A30977
September 30, 2003
.
Carroll J. Andre,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A30977
Agency No. FNP-2002-100
DECISION
Complainant appealed to this Commission from the agency's October 10, 2002
final decision to dismiss his employment discrimination complaint. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of reprisal for his opposition to violations of Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. when on April 5, 2002, complainant's supervisor sent
complainant an e-mail threatening to reprimand him for insubordination.
The agency dismissed the complaint for failure to state a claim,
finding that complainant failed to allege any concrete harm to a term,
condition, or privilege of employment. On appeal, complainant argues
that he suffered "irreparable" harm when he was threatened in the April
5, 2002 e-mail, and removed from an investigation for misuse of funds.
He contends that the agency's action constituted unlawful harassment.
Complainant, an EEO Enforcement Officer, allegedly discovered that the
agency failed to build a wheelchair access ramp to the restrooms in its
Office of Human Resources, although it appropriated funds for the task.
In the April 5, 2002 e-mail, complainant's supervisor informed him
that, as previously discussed, complainant's investigation into the
matter should address only the issue of access to the restrooms, not the
misappropriation of funds. The supervisor further informed complainant
that he learned complainant was discussing the misuse of funds with
witnesses during his investigation, in direct contradiction to the
supervisor's instructions. He warned complainant that to the extent he
is acting as a representative of the EEO Office, any further discussion
of the agency's misuse of funds would be considered insubordination.
Nonetheless, the e-mail further informed complainant that when he is
not representing the EEO Office in an official capacity, "you are free
to address this issue in any way that you like, [and] to report and/or
follow[-]up with the IG's office if you so choose."
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). Hostile work environment harassment is
actionable if it sufficiently severe or pervasive to alter the conditions
of complainant's employment. See Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993).
Complainant has not alleged any harm to a term, condition, or privilege
of employment. Further, the agency's actions are not so severe or
pervasive as to alter the conditions of complainant's employment.
Complainant has not shown how he was harmed, or that the agency's
action was reasonably likely to deter his opposition to the alleged
violations of the Rehabilitation Act. Complainant was not disciplined,
and was not prohibited from pursuing the Rehabilitation Act issue in
his investigation.
CONCLUSION
Accordingly, the agency's dismissal 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
September 30, 2003
__________________
Date