0120110419
09-13-2013
Richard K. Anderson, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Richard K. Anderson,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120110419
Agency No. DON 10-68095-02225
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 16, 2010, 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Quality Control Audio Technician, GS-07 at the Agency's Department of the Navy, Naval Hospital facility in Bremerton, Washington. On July 15, 2010, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of religion (Christian Israel) when on May 10, 2010, he and all other employees received an email from the Agency that he alleged restricted his religious expression in the workplace.
Specifically, the email, which was titled "Distribution of Religious Literature at NHB," stated, among other things, that:
[T]he oversight and distribution of any religious literature at NHB is the responsibility of the Command Religious Program. When individuals randomly place their religious literature throughout the hospital, it violates the Establishment Clause of the First Amendment by giving the impression of command endorsement of a particular religious group. The Pastoral Services Department carefully selects inspirational/religious literature that is non-sectarian and non-denominational in light of the diversity of beliefs of both the staff and patients at NHB.
Complainant, in his formal complaint, argued that the Agency's actions represented a "prior restraint and religious censorship in violation of my first, ninth and tenth amendment rights, and a violation of Title VII. This has set up a hostile work environment against my faith." Complainant also made clear in his formal complaint that he was not seeking an accommodation that would allow him distribute literature by saying, "I reject requesting special accommodations as I either have rights, which are natural rights, or I don't - and nobody else should then, including the Chaplin's office!"
The Agency dismissed Complainant's complaint on the grounds that it failed to state a claim. According to the Agency, Complainant was not aggrieved by its actions because he did not establish, by his general allegation that his faith was violated, that he suffered a harm or loss to his employment.
CONTENTIONS ON APPEAL
On appeal, Complainant indicated that as an adherent of the Christian Israel faith, he believes that his "duties have encompassed the sowing or distribution of literature . . . ."
The Agency opposes Complainant's appeal and maintained, in pertinent part, that "the policy is not directed at the Complainant but is a general policy for all personnel at Naval Hospital Bremerton."
ANALYSIS AND FINDINGS
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). In the case at hand, Complainant failed to show that he was aggrieved by the May 10, 2010 email. In essence, Complainant's allegation involves a general grievance that any employee might have with the Agency's action rather than setting forth a specific harm or loss to himself with respect to a term, condition or privilege of his employment.1
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
_9/13/13_________________
Date
1 To the extent that Complainant believes that his Constitutional rights have been violated, we advise him that enforcement of these rights are outside of our purview.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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