0120102260
09-07-2010
Charles T. Mensing, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Charles T. Mensing,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120102260
Agency No. ARGORDON10JAN00282
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated March 22, 2010, dismissing his complaint of unlawful employment discrimination in violation of 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.
ISSUE PRESENTED
Whether the Agency properly dismissed the complaint for failure to state a claim.
BACKGROUND
In a complaint dated February 26, 2010, Complainant alleged that the Agency subjected him to discrimination on the bases of disability, age (57) and reprisal for prior protected EEO activity [under ADEA and Rehabilitation Act] when, on December 29, 2009, he learned that the physical requirements for police officers no longer required sit-ups as a part of testing.
Agency Dismissal
The Agency found that Complainant explained that in 2008, he was forced out of his position as a Police Officer because he could not perform the "sit-ups" that were mandatory to pass requirements set forth by Department of the Army. The Agency subsequently removed this requirement, after Complainant had already voluntarily transferred to a mail clerk position. The Agency dismissed the complaint, finding that while new policy guidance may impose different standards, there is no requirement to reinstate officers who were removed when the former standards were in place. The Agency found that Complainant failed to show how he was harmed or denied any employment benefit in the terms and conditions of his employment. The Agency therefore dismissed the complaint for Failure to State a Claim.
CONTENTIONS ON APPEAL
On appeal, Complainant raises no new arguments. The Agency, among other things, asks the Commission to affirm the dismissal of the complaint.
ANALYSIS
Based on a fair reading of this complaint, Complainant is asserting that a requirement to perform "sit-ups" injured him in the past, and caused him to be transferred in February 2008, to a mail clerk position. He states that now, the "sit-up" requirement, which he believes was discriminatory, has been eliminated and he would like to be restored to his Police Officer position at the Fort Gordon Police Department. The Commission finds that the complaint fails to state a claim under the EEOC regulations because Complainant failed to show that he suffered a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Complainant was transferred from his position in February 2008, therefore, he did not suffer a present harm or loss when he discovered in December 29, 2009, that the standards had been changed.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 (S0610)
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
_____9/7/10_____________
Date
2
0120102260
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102260