01a54303
12-05-2005
Khosrow Delalat, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Khosrow Delalat v. Department of the Air Force
01A54303
12-05-05
.
Khosrow Delalat,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A54303
Agency No. 9U0J05001
DECISION
Complainant filed the instant appeal from the agency's May 5, 2005 final
decision dismissing complainant's complaint of employment discrimination.
The appeal is accepted pursuant to EEOC Regulation 29 C.F.R. � 1614.405.
In his complaint dated April 9, 2005, complainant alleged that he
was subjected to discrimination on the bases of race (Black/Alaskan),
national origin (Iranian-American), religion (Muslim), disability, and age
(D.O.B. 11/23/38) when since May 2003, the agency has subjected him to
a hostile work environment, and reprisal for his prior EEO activities.
Complainant further alleged that his supervisor discriminated against
him when he failed to keep copies of complainant's personnel records and
correspondence and failed to respond to complainant's communications
or to provide him with assistance in contacting the EEO Office, the
Office of Inspector General, Labor Relations, the Office of Personnel
Management and the Office of Special Counsel. Complainant also claims
that his supervisor failed to allow him to compete for employment and
generally treated him differently than other employees.
In its final decision, the agency determined that complainant's complaint
was untimely in that he failed to contact an EEO Counselor within 45
days of his removal from the agency in October 2003. The agency further
found that since complainant is no longer employed with the agency,
he can no longer be aggrieved by agency actions. The record is unclear
regarding the date of complainant's initial contact with the agency's
EEO office. In its final decision, the agency indicates that complainant
initially sought EEO counseling on December 30, 2003, however, there is no
evidence in the record to support the agency's conclusion in that regard.
The record contains a copy of an informal complaint to the agency's EEO
office dated March 2, 2005 and a formal complaint dated April 9, 2005.
Upon review, the Commission finds that complainant's complaint is more
appropriately analyzed to determine if it states a claim of employment
discrimination.
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).
Upon review, we find that complainant has failed to provide any specific
information regarding his complaint. Complainant has not identified what
happened specifically in his complaint, how he was treated differently,
or how the agency's actions altered the terms, conditions or privileges of
his employment. Additionally, the complaint lacks sufficient specificity
and detail to permit an investigation. In addition, the Commission finds
that none of the incidents cited by complainant, viewed independently
or as an overall claim of harassment, are either sufficiently severe
or pervasive to state a claim of harassment. It is well-settled
that, unless the conduct is very severe, a singe incident or group of
isolated incidents will not be regarded as creating a discriminatory
work environment. See James v. Department of Health and Human Services,
EEOC Request No. 05940327 (September 20, 1994); Walker v. Ford Motor
Company, 684 F.2d 1355 (11th Cir. 1982). In the instant complaint, we
find that complainant failed to show that he suffered harm with respect
to the conditions of his employment.
Regarding complainant's claim that his supervisor failed to assist him
in contacting the agency's EEO Office, we note that the Commission has
held that in order to establish EEO counselor contact, an individual
must contact an agency official logically connected to the EEO process
and exhibit an intent to begin the EEO process. Allen v. United States
Postal Service, EEOC Request No. 05950933 (July 8, 1996). We find that
in asking his supervisor to forward correspondence to the EEO Office on
his behalf, complainant has failed to present evidence that he contacted
an agency official logically connected with the EEO process and exhibited
an intent to begin the EEO process prior to March 2, 2005 when he filed
an informal complaint with the EEO office.
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because complainant failed to show that he suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
Accordingly, the agency's final decision dismissing complainant's
complaint is hereby AFFIRMED for the reasons set forth herein.
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.
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
____12-05-05______________
Date