01a52747
04-20-2005
Philip Beverly, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security Agency.
Philip Beverly v. Department of Homeland Security
01A52747
April 20, 2005
.
Philip Beverly,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security
Agency.
Appeal No. 01A52747
Agency No. HS 04-1349
DISMISSAL OF APPEAL
Complainant filed a timely appeal with this Commission from a final agency
decision, dated February 2, 2005, pertaining to his EEO 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 record reflects that during the relevant time, complainant was a Petty
Officer (PO) with the United States Coast Guard (USCG). Believing that
he was subjected to discrimination based on race, complainant filed a
formal complaint on June 15, 2004.
On February 2, 2005, the agency issued the instant final decision.
Therein, the agency determined that complainant's complaint was comprised
of four claims, identified in the following fashion:
(1) On December 2, 2003, his privately owned vehicle was vandalized by
two shipmates (SM1 and SM2) who used a white, water-soluble, flocking
(�fake snow�) compound to write on his vehicle.
(2) During the period of time beginning in January 2003 and ending in
April 2003, complainant was referred to as a �nigger� on at least two
occasions by SM1 in front of his roommate when he was not present.
Complainant's roommate reported the two incidents but SM1 has only
received a �slap on the wrist� by the Command.
(3) The USCG Command did nothing to stop pranks between shipmates until
complainant was implicated as a participant in one or more pranks, and
then he was threatened with being charged with making derogatory slurs
against SM2 and possibly complainant's roommate, while the prankish
actions of complainant's white shipmates were considered harmless.
(4) The USCG investigations of the above allegations, claims 1 through
3, were discriminatorily conducted. Complainant further asserted that
these claims are evidence of both racial bias and disparate treatment.
The agency dismissed claims (1) and (2) on the grounds of untimely
EEO Counselor contact and for failure to state a claim. The agency
dismissed claim (3) on the grounds that it addressed a proposal to take
a personnel action. Finally, the agency dismissed claim (4) for failure
to state a claim, finding that it constituted an impermissible collateral
attack on the agency's internal investigation.
On appeal, the agency contends that its final decision erroneously
informed complainant that if he was dissatisfied with the decision, he
could file an appeal with the Commission. The agency states that because
complainant is a military member of the Coast Guard, his complaint is
not subject to the Commission's jurisdiction. The agency argues that
complainant instead may seek review from its Office of Civil Rights and
Civil Liberties (OCRCL). According to the agency, complainant's appeal
has been forwarded to OCRCL.
The record indeed reflects that complainant is a Petty Officer, and a
uniformed member of the Coast Guard. The Commission's jurisdiction in
the federal sector complaint process under Title VII covers employees
and applicants for federal employment. See 42 U.S.C. � 2000e-16(a).
This coverage is extended to most executive agencies within the federal
government, including �military departments as defined in 5 U.S.C. � 102".
29 C.F.R. � 1614.103(b)(1). Nonetheless, �uniformed members of military
departments� are not covered by the federal sector process. 29 C.F.R. �
1614.103(d)(1).
Accordingly, the complainant's appeal is hereby DISMISSED.
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
April 20, 2005
__________________
Date