01A34813_r
12-04-2003
Howard C. Royce v. Department of the Navy
01A34813
December 4, 2003
.
Howard C. Royce,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A34813
Agency No. 03-65886-020
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 27, 2003, 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. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race (Caucasian), color
(white), sex (male), age (D.O.B. 8/8/61), and reprisal for prior EEO
activity when:
Complainant was denied access to a memorandum dated February 21, 2002,
and an electronic mail message of January 24, 2002.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
The agency concluded that complainant failed to show a harm to a term,
condition, or privilege of employment.
On appeal, complainant states that he was harmed �in the management's
willful disregard for the truth.� Complainant claims that Person A's
disregard for the truth culminated in his preparation of a February 21,
2002 memorandum which he states falsely concluded that he abused sick
leave. Complainant states that Person A's memorandum was forwarded to
the agency attorney, Person B, who relied upon it in part to justify a
proposed three-day suspension for complainant. Complainant states that
the removal of the false allegations would have resulted in an immediate
reduction of the three-day suspension to a lesser penalty. Complainant
claims that �the net result would have been at most a reprimand for
usage of the email system and fax machine, not the one-day suspension.�
In response to complainant's appeal, the agency reiterates its position
that denial of access to the requested documents does not rise to
the level of an �adverse employment action.� The agency notes that
on January 9, 2003, complainant submitted a Freedom of Information Act
(FOIA) request for the documents at issue in this case. The agency avers
that complainant's FOIA request was denied on January 23, 2003, which he
then appealed. The agency states that on March 26, 2003, complainant's
appeal of the denial was granted in part and he received both documents
at issue with some information deleted, as required by FOIA. The agency
concludes that since complainant received all requested documentation
legally permitted to be disclosed, he has suffered no injury.
The record contains a copy of complainant's formal complaint in which he
alleges that the most recent discrimination occurred on January 23, 2003.
In his formal complaint, he lists the allegations of discrimination
to include (A) Person A's February 21, 2002 memorandum concerning sick
leave abuse and (B) unidentified January 24, 2002 HRO electronic mail
message recommending minor reprimand for misuse of electronic mail system.
The record contains a copy of complainant's January 9, 2003 FOIA request
for copies of a memorandum dated February 21, 2002, and an HROJax
electronic mail dated January 24, 2002. The record contains a copy of
the January 23, 2003 denial by the agency of complainant's FOIA request.
Complainant then appealed the agency's denial of his FOIA request.
The record contains a March 26, 2003 letter, addressing complainant's
FOIA appeal. In this letter, the agency issued its final administrative
decision releasing to complainant �segregable factual portions� of the
January 24, 2002 letter and the February 21, 2002 memorandum.
Upon review, we find that the agency properly dismissed complainant's
complaint for failure to state a claim. The Commission has held that
it does not have jurisdiction over the processing of FOIA requests.
Further, the Commission finds that complainant has not established
that he sustained any harm or loss with respect to a term, condition,
or privilege of his employment as a result of the failure to provide him
a copy of the above reference documents which thereafter were released
in a redacted format. Finally, we note that while complainant states
that he ultimately received a suspension we find that in the present
case he is not challenging his receipt of the suspension.
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
December 4, 2003
__________________
Date