0120093590
12-04-2009
Frank Calvano, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Threat Reduction Agency), Agency.
Frank Calvano,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Threat Reduction Agency),
Agency.
Appeal No. 0120093590
Agency No. DD-FY09-022
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated March 17, 2009, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 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.
Complainant filed a formal EEO complaint alleging that the agency
subjected him to hostile work environment harassment on the bases of
race (Caucasian) and age (over 40) when (1) in November and December
2008, respectively, complainant's second level supervisor (S1) told him
that he needed to transfer and asked about his retirement plans; (2)
in January 2009, S1 chastised and rebuked complainant in an email; and
(3) in February 2009, while on travel in Germany, S1 called complainant
to her hotel dinner table and chastised him for allegedly mishandling
a child abuse matter. Complainant alleged that S1 hates him and acted
to prompt his retirement.
In its final decision, the agency stated that complainant's complaint
fails to state a claim. It stated that complainant failed to allege a
concrete harm and that the alleged actions do not rise to the level of a
hostile work environment. The instant appeal from complainant followed.
On appeal, complainant stated that he has been aggrieved by S1's actions
because he suffered medical problems and still endures harassing actions
to prompt his retirement.
The Commission finds that the complaint fails to state a claim under EEOC
regulations. Complainant failed to show that he suffered harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy1 or that the actions as alleged are sufficiently severe
or pervasive to alter the conditions of complainant's employment. See
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Accordingly,
we AFFIRM the final agency decision dismissing complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
December 4, 2009
__________________
Date
1 See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
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0120093590
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093590