01A32405_r
09-22-2003
James E. Trent, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
James E. Trent v. Department of the Air Force
01A32405
September 22, 2003
.
James E. Trent,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A32405
Agency No. 9V1M03106
DECISION
Complainant filed an appeal with this Commission concerning 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 a complaint dated January 10, 2003, complainant alleged
that he was subjected to discrimination on the basis of reprisal for
prior EEO activity when his second level supervisor harassed him on a
continuous basis from October 8, 2002 to December 2002 regarding the
following incidents:
1. His second level supervisor elected to change the terms and
conditions of complainant's employment based on an on-the-job-injury
(date not identified).
2. On November 7, 2002, his second level supervisor refused to provide
the CA-2 Form to the complainant regarding his on-the-job injury.
The agency dismissed claim 1 for failure to cooperate, pursuant to 29
C.F.R. � 1614.107(a)(7). Additionally, the agency dismissed claim 2
for raising the same matters in a grievance procedure, pursuant to 29
C.F.R. � 1614.107(a)(4).
With regard to claim 1, we find that the claim is more properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
The Commission finds that complainant's complaint is too vague to state a
claim under the EEOC regulations. We note that not only does complainant
fail to provide the specific date of the alleged discrimination, but he
also does not explain how he believed that his second level supervisor
changed the terms or conditions of his employment. The agency can not be
expected to investigate a complaint without complainant explaining the
time frames or the alleged action at issue. After reviewing the record
as to claim 1, we find that complainant failed to present a specific
claim of employment discrimination covered by EEOC regulations.
With regard to claim 2, we find that the agency properly dismissed
this claim pursuant to 29 C.F.R. � 1614.107(a)(4), on the ground
that complainant elected to raise the matter in a negotiated grievance
procedure that permits allegations of discrimination. The record reveals
that complainant filed a grievance on October 31, 2002, which concerned
the second level supervisor's refusal to provide the CA-2 Form to the
complainant regarding his on-the-job injury. We find that complainant,
by filing the negotiated grievance before the complaint, made an election
to proceed through the negotiated grievance process and that, once he made
such an election, he could no longer file a complaint on the same matter.
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
September 22, 2003
__________________
Date