01a44320
01-05-2005
Larry W. Johnson, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Larry W. Johnson v. Department of Defense (Defense Logistics Agency)
01A44320
January 5, 2005
.
Larry W. Johnson,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A44320
Agency No. CA-04-001
DECISION
Complainant appeals to the Commission from the agency's May 6, 2004
decision dismissing complainant's complaint for failure to state a
claim and for stating the same claim as raised by complainant in a prior
complaint pursuant to 29 C.F.R. � 1614.107(a)(1).
In the instant complaint, complainant alleged that he was discriminated
against on the bases of age and retaliation when:
Complainant was harassed by a series of comments at a retirement seminar
on July 31, 2003.
During the week of June 22, 2003:
An Incident Report was posted on the Fire Department Bulletin Board with
the statement on top, �DID YOU FIND IT?� The Incident Report concerned
an emergency run wherein complainant had driven past a street to which
he had been called.
A handicap sign was placed on the wall next to his bunkroom door.
Coworker A told complainant that Coworker B told Coworker C that a
getting in the wrong side of the fire truck was �old Johnson stuff.�
Complainant was screamed at to get in the truck and to hurry.
The words �sleepy� and �dopey� were written on the bunk room doors of
firefighters who were on leave.
Complainant was harassed when his Coworkers failed to send his wife a
get-well card or flowers when she was ill.
Complainant's position would not be upgraded until he retired.
The agency attempted to force complainant to retire by not selecting him
for the Acting Fire Chief position, by pitting his crew and coworkers
against him, and by using his eye condition to take him out of his
position as lead firefighter.
Management placed a surveillance camera in the office.
The Commission agrees with the agency that claims 4 - 6 were previously
considered in a prior complaint filed by complainant which was the
subject of a decision by an EEOC AJ on September 22, 2003 in EEOC Hearing
No.220-A3-5074X. That case is currently pending before the Commission
in EEOC Appeal No. 01A41134. Furthermore, we agree with the agency
that complainant's claim of harassment (claims 1 - 3) is insufficient
to state a claim of harassment. The incidents, taken together, are
not sufficiently severe or pervasive to state a claim of harassment.
We note that claim 3 does not even directly involve complainant and that
claim 2(C) was not a comment allegedly made to complainant or heard
by complainant. Therefore, we find that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
Accordingly, 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
January 5, 2005
__________________
Date