01A31492_r
09-15-2003
Mostafa M. Gad, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Mostafa M. Gad v. Department of the Navy
01A31492
September 15, 2003
.
Mostafa M. Gad,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A31492
Agency No. DON-FY02-66630-002
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 4, 2002, dismissing his 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The agency defined the claims of complainant's
complaint as follows:
Complainant alleged that he was subjected to discrimination on the bases
of race, national origin, sex, religion, color, age, and reprisal for
prior EEO activity when:
2.a. On May 15, 2002, complainant's proposed annual plan for conducting
audits submitted to the Commanding Officer was not approved, with the
conclusion that "no action is required," since the staff would perform
their own audits.
2.b. On May 16, 2002, complainant was humiliated by remarks made at
a weekly department head meeting regarding the issuance of military
ID cards by non-native born citizens and the Administrative Officer
commented that complainant's base identification card could be taken
away because he was a naturalized citizen.
2.c. On May 17, 2002, complainant learned that he no longer held a
"confidential" level security clearance.
The agency dismissed claim (2.a.) pursuant to 29 C.F.R. � 1614.107(a)(5)
on the grounds that this claim is moot following complainant's voluntary
retirement on November 22, 2002. The agency found that complainant's
retirement eliminated the possibility that the alleged discrimination
could recur, and also completely eradicated the effects of the alleged
discrimination. The agency dismissed claims (2.b.) and (2.c.) pursuant
to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The agency
found that no adverse personnel action had been taken and complainant
suffered no loss as a result of the remarks made concerning complainant's
identification card. Lastly, the agency found that the Commission is
precluded from reviewing matters relating to security clearances.
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).
The Commission finds that complaint is properly dismissed for failure to
state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). The Commission
finds that complainant was not aggrieved by the incident in claim
(2.a.). We find nothing in the record to indicate complainant's base
identification card was taken from him. Neither do we find stray remarks
regarding whether naturalized citizens could become president or issue
military identification cards either sufficiently severe or pervasive
enough to state a claim of harassment. Accordingly, we find the agency
properly dismissed claim (2.b.) pursuant to 29 C.F.R. � 1614.107(a)(1).
We acknowledge that the Commission is precluded from reviewing the
validity of the requirement of a security clearance and the substance of
a security clearance determination. Thierjung v. Department of Defense
(Defense Mapping Agency), EEOC Request No. 05880664 (November 2, 1989).
We find the agency properly dismissed claim (2.c.) pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim.
The agency's dismissal of the 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
September 15, 2003
__________________
Date