Keith D. Anderson, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionNov 4, 2004
01a44391 (E.E.O.C. Nov. 4, 2004)

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