01a44391
11-04-2004
Keith D. Anderson, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Keith D. Anderson v. Department of the Air Force
01A44391
November 3, 2004
.
Keith D. Anderson,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A44391
Agency No. 9C1S04005
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, dated May 21, 2004, dismissing his formal 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.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office claiming that he was discriminated
against when he received a March 15, 2004 memorandum ordering him
to follow the chain of command. Specific incidents that complainant
believed led to the issuance of the memorandum included:
(1) On January 9, 2003, complainant reported the time card fraud of
his supervisor who allegedly falsified his work hours;
(2) On March 26 and 27, 2003, complainant was allegedly asked to cover
up a situation involving operation in the plant he believed could have
compromised the organization's mission and complainant reported to
others higher up the chain.
(3) On October 2003, complainant spoke with the Squadron Commander
about employees not getting overtime pay for hours worked.
In its final decision, dated May 31, 2004, the agency dismissed
the complaint for failure to state a claim. The agency found that
complainant failed to show how he was harmed as a result of the agency's
actions. Regarding claims (1) and (3), the agency noted that the matters
concerned other employees rather than complainant.
The regulation set forth at 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).
A review of the March 15, 2004 memorandum at issue, shows that complainant
was �ordered to follow the chain of command beginning with your immediate
supervisor before elevating any grievance to the next supervisory level.�
Further, the memorandum advised complainant to �refrain from elevating
issues on behalf of others on subject matter outside of your purview.�
Finally, complainant was warned that �[a]ny future violation of this
order may result in disciplinary action.� Consequently, we do not find
that complainant suffered a personal loss or harm regarding a term,
condition or privilege of his employment as a result of the memorandum
or as a result of the alleged events purportedly leading to the issuance
of the memorandum.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby 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
November 4, 2004
Date