01a42609_r
09-15-2004
Salat Malik, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Salat Malik v. Department of Defense
01A42609
September 15, 2004
.
Salat Malik,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01A42609
Agency No. 03PFPA028
DECISION
Complainant appeals to the Commission from the agency's March 4, 2004
decision dismissing his complaint. Complainant alleges discrimination
on the bases of race and color when: (1) on August 13, 2003, his first
level supervisor informed him that effective August 18, 2003, his duty
hours would change from 0330-1130 to 0500-1300 hours; (2) in 2003, his
first level supervisor required him to share his parking permit with a
co-worker, creating hardship because of his odd work hours; (3) on May
29, 2003, his acting supervisor presented him with his annual performance
appraisal and asked him to sign it without discussing it or being given
an opportunity to read the appraisal; and (4) during 2002, and in the
summer months of 2003, he was subjected to derogatory racial statements.
In 2002, a retired police officer stated that African-Americans working
in the Pentagon Remote Delivery Facility were �uppity Negroes.� In
the summer months of 2003, his first level supervisor used the term
�you monkeys� and referred to a coworker as a �boy� in his presence as
well as other African-Americans. The agency dismissed claims 1 and 2
for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
The agency dismissed claims 2 - 4 for untimely EEO Counselor contact
pursuant to 29 C.F.R. � 1614.107(a)(2). On appeal, the agency further
argues that claim 2 is also properly dismissed as moot pursuant to 29
C.F.R. � 1614.107(a)(5), and that claim 3 is also properly dismissed
for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
With regard to claim 1, there is no indication that complainant's duty
hours were actually changed. Thus, claim 1 is properly dismissed for
failure to state a claim. With regard to claim 2, complainant has failed
to show harm to a term, condition or privilege of employment, and thus
fails to state a claim. With regard to claim 3, complainant did not
initiate EEO Counselor contact until August 19, 2003, beyond the 45-day
limitation period. Complainant has not presented adequate justification
to warrant extension of the applicable limitation period. Therefore,
claim 3 was properly dismissed for untimely EEO Counselor contact.
With regard to claim 4, complainant has not shown harm to a term,
condition or privilege of employment. Further, complainant has not
alleged a claim that is severe or pervasive enough to constitute a claim
of harassment. Thus, claim 4 was properly dismissed for failure to state
a claim. Since complainant's claims were properly dismissed under the
above stated grounds, the Commission will not make a determination on
the agency's alternative grounds for dismissal.
The agency's decision dismissing complainant's complaint is AFFIRMED
for 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.
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, 2004
__________________
Date