0120080471
05-01-2008
Everett L. Butler, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Everett L. Butler,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120080471
Agency No. 076588801385
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 3, 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.
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 the instant matter, complainant alleged that he
was subjected to discrimination on the bases of race (African-American)
and reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when:
1. The agency subjected him to greater scrutiny than other employees by
reviewing every email sent or received spanning a three year period;
2. He was referred for a security clearance review.
In claim 1, complainant alleges that he was subjected to increased
scrutiny of his email over a three year period. The Commission has
found that such claims, if frequent and severe enough may state a claim
of harassment. See Schwartz v. United States Postal Service, EEOC Request
No. 05960294 (June 27, 1996); Reda v. United States Postal Service, EEOC
Request No. 05950934 (March 7, 1996). Isolated incidents of increased
scrutiny, however, generally fail to state a claim. See Strassburger
v. Social Security Administration EEOC Appeal No. 01986855 (July 26,
1999). Here, the record indicates that complainant's email was reviewed
at the request of complainant's representative as part of complainant's
discovery in the instant matter. Specifically, complainant's discovery
request was for all email related to complainant's action of signing in
and out of a computer. Consequently, the record herein does not support
complainant's allegations. Specifically, he has failed to demonstrate
that the agency engaged in the conduct alleged or that the alleged conduct
was so severe and pervasive as to alter the conditions of complainant's
employment. With respect to claim 2, complainant does not indicate that
he was disciplined as a result of the review of his security clearance.
Therefore, we find that complainant was never harmed, as he failed to
identify how the initiation of a security clearance review adversely
affected a term, condition or privilege of his 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 (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 (Z0408)
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
May 1, 2008
__________________
Date
2
0120080471
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120080471