01994027_r
03-27-2001
John M. Scomona, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
John M. Scomona v. Department of the Air Force
01994027
March 27, 2001
.
John M. Scomona,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01994027
Agency No. AL900990579
DECISION
Upon review, the Commission finds that complainant's complaint
was properly dismissed pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a)(1). In violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq., complainant claimed that
he was discriminated against on the basis of reprisal (EEO activity) when:
Complainant was charged with 40 hours of annual leave while he was in
pay status; and,
His supervisors questioned him about his EEO activity when he requested
official time to meet with an EEO representative.
Furthermore, complainant contends that these two incidents constitute
harassment based on reprisal.
The FAD dismissed claim 1 for failure to state a claim, noting that the
agency's action was attributable to an administrative error, and that
when complainant brought this error to the attention of his supervisors,
it was promptly corrected. The FAD did not address claim 2.
On appeal, complainant argues that he was intentionally charged with
the 40 hours of annual leave as a form of harassment for filing an EEO
complaint, noting that no other worker in the division had leave errors.
Complainant additionally claims that the questioning from his supervisors
was harassment, and argues that dismissal of these claims will prevent
him from showing a pattern of harassment based on reprisal. In response,
the agency repeats its determination that complainant is not �aggrieved�
and the complaint was properly dismissed for failure to state a claim.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint that fails to state a claim.
An agency shall accept a complaint from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The Commission agrees with the agency regarding claim 1, and determines
that that complainant has failed to show how he was harmed with respect
to claim 1, given that complainant lost no pay or benefits from the error.
Regarding claim 2, the Commission construes the agency's failure to
address this claim as a dismissal of this claim. After review of the
record, the Commission determines that complainant was not harmed by the
questioning described in claim 2. The record does not support a finding
that complainant was prevented from meeting with his EEO representative,
or that his request for official time denied. Therefore, because
complainant identifies no harm as a consequence of claim 2, we determine
that claim 2 was properly dismissed for failure to state a claim.
With respect to complainant's harassment claim, the Commission notes
that it is well settled that a claim of harassment is actionable only
if the claimed harassment to which the complainant has been subjected
was sufficiently severe or pervasive to alter the conditions of the
complainant's employment. See Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (March 13, 1997). Here, a review of the record
reflects that the incidents in question, even considered together,
are insufficient to support a claim of harassment. See Cobb, supra.
Accordingly, the agency's decision dismissing complainant's complaint
is hereby AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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:
March 27, 2001
________________________________
Date Carlton M. Hadden, Director
Office of Federal Operations