01A32145_r
12-30-2003
David Thweatt, Jr. v. Department of Defense
01A32145
December 30, 2003
.
David Thweatt, Jr.,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency)
Agency.
Appeal No. 01A32145
Agency No. GA-02-015
DECISION
Complainant initiated contact with an EEO Counselor on March 12, 2002.
On March 29, 2002, complainant filed a formal EEO complaint wherein he
claimed that he was discriminated against on the bases of his sex (male),
race (African-American), and age (dob 2/7/52). The agency defined the
complaint as alleging that complainant was discriminated against when:
1. The Commander at the Defense Supply Center Richmond (DSCR) allowed
civilian management to manipulate the EEO Regulations.
2. The Commander at the DSCR allowed a White coworker to criticize
and abuse training funds for a class which the Commander said it was
unfortunate that the coworker did not attend.
3. The Commander at the DSCR allowed the EEO Office to perform an
incomplete investigation on a false accusation by a supervisor who is
a former law enforcement officer.
4. The Commander at the DSCR does not take Customer Quality Service
seriously in the empowerment of training.
Complainant did not challenge the framing of the complaint.
By final action dated June 5, 2002, the agency dismissed claims 1-2 of
the complaint pursuant to 29 C.F.R. �1614.107(a)(2), on the grounds that
complainant failed to initiate contact with an EEO Counselor in a timely
manner. The agency determined based on complainant's response to its
request for clarification that the events at issue in claims 1-2 occurred
on July 17-18, 2001. The agency subsequently determined that complainant's
contact of an EEO Counselor on March 12, 2002, was after the expiration
of the 45-day limitation period for contacting an EEO Counselor.
The agency dismissed claim (3) pursuant to 29 C.F.R. �1614.107(a)(8) on
the grounds that the claim alleged dissatisfaction with the processing
of a previous complaint. According to the agency, claim (3) concerns
the agency's investigation of a formal complaint filed by complainant on
November 5, 2001 (GA-02-005). The agency dismissed claim (4) pursuant
to 29 C.F.R. �1614.107(a)(1) on the grounds of failure to state a claim.
The agency determined that complainant did not respond to the request
for clarification as to how he suffered a personal loss or harm with
respect to a term, condition, or privilege of his employment. Thereafter,
complainant filed the instant appeal.
With regard to claim (1), the relevant incident concerned complainant not
being provided with a copy of an e-mail that he requested. The record
indicates that complainant requested a copy of the e-mail in July 2001
and September 2001. As for claim (2), the record reveals that the
alleged incident occurred on July 17-18, 2001. Complainant did not
show due diligence as he did not initiate contact with an EEO Counselor
until March 12, 2002, after the expiration of the 45-day limitation
period for contacting an EEO Counselor. Complainant has not submitted
sufficient argument or evidence to warrant an extension of the 45-day
limitation period. Accordingly, the agency's dismissal of claims 1-2
on the grounds of untimely EEO contact was proper.
As for claim (3), we observe that complainant is challenging the adequacy
of an EEO investigation in which he had been accused of harassment.
Complainant claimed that he was denied information gathered during the
investigation. We find that complainant has not established that he
suffered harm to a term, condition, or privilege of his employment as a
result of the investigation. We therefore dismiss claim (3) pursuant to
29 C.F.R. �1614.107(a)(1) on the grounds of failure to state to claim.
Accordingly, the agency's dismissal of claim (3) was proper.
With regard to claim (4), we observe that complainant failed to identify
in his response to the agency's request for clarification any specific
examples where he was denied training.<1> Complainant also chastises the
agency for not encouraging his coworkers to undergo further training.
We find that complainant has not established how he suffered harm with
regard to a term, condition, or privilege of his employment. Accordingly,
the agency's dismissal of the claim (4) on the grounds of failure to
state a claim was proper.
The agency's decision dismissing the 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
December 30, 2003
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1We note that complainant makes reference to a settlement agreement dated
October 12, 2001, where the agency agreed in part to provide him with
training opportunities in exchange for the withdrawal of his complaint.
We observe that complainant has filed a separate breach of settlement
claim with the Commission and there is no indication that claim (4)
of the instant complaint pertains to any specific training opportunities
beyond that covered in the settlement agreement. Complainant's settlement
breach claim will be adjudicated separately by the Commission.