0120080097
03-05-2008
Dennis E. Mann, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, (Army National Guard Bureau), Agency.
Dennis E. Mann,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
(Army National Guard Bureau),
Agency.
Appeal No. 0120080097
Agency No. 70585TNA0107G0
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 27, 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. In his
complaint, complainant alleged1 that he was subjected to discrimination
on the basis of reprisal for prior protected EEO activity under an EEO
statute that was unspecified in the record when he was subjected to
harassment.
The agency dismissed the claim pursuant to 29 C.F.R. � 1614.107(a)(7) for
failure to cooperate. The agency noted that complainant's allegations
were vague and unclear and that complainant was asked to provide more
detail but failed to do so. The Commission has held that an agency's
decision to invoke the provisions of � 1614.107(a)(7) should be made
only when there is a clear record of delay or contumacious conduct by
the complainant. Keahey v. Social Security Administration, EEOC Appeal
No. 01A00650 (March 21, 2001). Upon review, the record shows no evidence
of contumacious conduct or intentional delay. We do find, however,
that complainant's complaint should be dismissed on alternate grounds.
In his Formal Complaint, complainant states the following:
I believe that I was discriminated against based on reprisal. I was never
allowed to do or get any ADSW (not defined) because I was not in the
Training Site military unit. I was harassed about funerals and funeral
practice. I was allowed very little PT because Training Site people do
not deploy. I had a doctor's appointment and was told I could not take
sick leave to go to [sic] doctor's. I called the union and they tried
to talk to (management officials). The doctor's appointment was [sic]
8 February 2006. After the union talked to (management officials) all
hell broke loose. I had to come in 30 minutes early or not have lunch.
I had to wear army PT uniform if I did not get to do PT. No other
technician has to wear PT uniform. I was harassed about going to the
latrine. I was harassed about my ET score (not defined). I had to take
10 hours to visit HRO about transferring to another job after I was told
to leave by (management officials). This happened [sic] 1 Feb 06. I was
told everyone in Guard had too fill out a JB (not defined) worksheet
and I had to fill out one for (a management official) to take back to
(another management official's) weekly meeting. Then there was a desk
audit because (a management official) eliminated my job?[sic] I had
already been told I would be a GS-7 in February 2005. Then I was told
the desk audit would make me a GS-4 or GS-6.
Some of these allegations provide sufficient detail to proceed, for
example complainant alleges that he was denied leave on February 8, 2006.
We note, however, that this allegation was not brought before an EEO
counselor and is not like or related to the claims raised before
the Counselor. It is therefore dismissed pursuant to 29 C.F.R. �
1614.107(a)(2).
As for the remaining allegations, the Commission finds that the complaint
fails to state a claim under the EEOC regulations because complainant
failed to show that he was subjected to unwelcome verbal or physical
conduct involving his protected class, that the harassment complained of
was based on his statutorily protected class, and that the harassment
had the purpose or effect of unreasonably interfering with his work
performance and/or creating an intimidating, hostile, or offensive
work environment. See McCleod v. Social Security Administration, EEOC
Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982). Nor has he shown 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). 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
March 5, 2008
__________________
Date
1 We note that, on appeal, complainant has included a copy of an undated
decision by a Hearing Examiner addressing a removal action. The removal
action, however, is not the subject of this appeal and shall not be
addressed in this decision.
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0120080097
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120080097