01A23656_r
07-22-2003
Kenneth Lakes, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Kenneth Lakes v. Department of Homeland Security
01A23656
July 22, 2003
.
Kenneth Lakes,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A23656
Agency No. 02-4159
DECISION
Complainant appealed to this Commission from the agency's May 30,
2002 dismissal of his employment discrimination complaint. Complainant
alleged that he was subjected to discrimination on the bases of race,
sex, and reprisal when:
(1) his supervisor has not allowed him the same training as other
supervisors have been allowed;
(2) on December 6, 2001, in violation of national policy and despite
his objections, he was directed by senior management officials to use
the Canine Team for Bay Area Rapid Transit (BART) searches;
(3) on January 3, 2002, complainant and the Mid-Pacific Customs
Management Center (CMC) staff received written notification from
Headquarters that the use of agency canines in BART operations was
inappropriate and that the arrangement must be terminated;
(4) on January 23, 2002, his supervisor belittled him in front of all
the enforcement managers by discussing two merchandise claims, noting
that risk assessments were impossible because the Canine Team did not
record examination data;
(5) on January 23, 2002, his supervisor instituted a new policy of
reducing the performance time for warehouse sweeps by Canine Officers
from an average of four hours to an average of 20 to 30 minutes;
(6) on February 12, 2002, a newly employed subordinate was subjected
to a series of interrogations by Customs personnel when she attempted
to retrieve a canine vehicle from the parking lot;
(7) on February 12, 2002, the Assistant Port Director of Passenger
Processing questioned an employee about complainant's EEO complaint;
(8) from January 9, 2002 to February 15, 2002, his Canine Enforcement
Unit did not have independent access to the canine narcotics storage
room marijuana at San Francisco Airport and was, thereby, unable to
train their dog with issued marijuana and hash training aids; and
(9) on February 15, 2002, the canine storage room for narcotics training
aids was relocated from the old to the new airport terminal when all
other areas, except this area, were moved to the new terminal over two
years ago.
The agency dismissed complainant's overall claim of harassment, pursuant
to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The
agency, then, individually dismissed claims 2 through 9, pursuant to
29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Additionally,
the agency dismissed claim 1, pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact. Additionally, the agency dismissed
claim 6 because complainant lacked standing to raise a claim on behalf
of another complainant. Finally, the agency, in separately addressing
complainant's reprisal claim, found no causal nexus between claims 2 -
9 and complainant's participation in the EEO process. Thus, the agency
dismissed complainant's claim of reprisal.
With regard to complainant's overall claim of harassment, the Commission
finds the agency's dismissal proper. We find that complainant's claim
is not severe or pervasive enough to constitute a claim of harassment.
With regard to claims 2 - 5 and 7 - 9, the Commission finds that these
claims fail to state a claim because complainant has not shown harm
to a term, condition, or privilege of employment. Since claims 2 -
5 and 7 - 9 are properly dismissed for failure to state a claim, the
Commission will not make a determination on the agency's alternative
grounds for dismissal.
Regarding claim 1, complainant's complaint does not indicate what training
was denied. Accordingly, the Commission finds that this claim fails
to state a claim because complainant has not shown harm to a term,
condition, or privilege of employment.
Regarding claim 6, complainant alleges discriminatory treatment when,
on February 12, 2002, one of complainant's subordinate was questioned
when she attempted to retrieve a canine vehicle from the parking
lot. Specifically, complainant alleged that management harassed this
subordinate and questioned complainant's supervisory capabilities and
authority. However, complainant has failed to show that he personally
suffered a harm to a term, condition, or privilege of employment for
which there is a remedy, and, therefore, has failed to state a claim.
The agency's 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
July 22, 2003
__________________
Date