01a30053_r
08-22-2003
Sherman C. Green, Complainant, v. Marianne Lamont Horinko, Acting Administrator, Environmental Protection Agency, Agency.
Sherman C. Green v. Environmental Protection Agency
01A30053
August 22, 2003
.
Sherman C. Green,
Complainant,
v.
Marianne Lamont Horinko,
Acting Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 01A30053
Agency No. 2002-0069-NC
DECISION
Upon review, the Commission finds that the agency's decision dated August
26, 2002, dismissing complainant's complaint for failure to state a claim
is proper pursuant to 29 C.F.R. � 1614.107(a)(1). The agency defined
the complaint as alleging that complainant was subjected to harassment
(hostile work environment) based on reprisal for filing prior EEO
complaints when:
On February 19, 2002, his Division Director transmitted an electronic
mail message response to [complainant's claims] of work place violence
that led [complainant] to believe that [complainant's claims] were
false accusations;
The EPA Administrator failed to take responsible actions to eliminate
an alleged hostile work environment in [complainant's] office resulting
from [complainant's claims] of work place violence, as demonstrated
by the February 25, 2002 letter [complainant] received in response to
[complainant's claims]; and
[Complainant's] management failed to take action to eliminate the
alleged hostile work environment in [complainant's] office resulting from
[complainant's claims] of work place violence.
Complainant has not challenged the agency's framing of the complaint.
It appears that the instant complaint concerns complainant's
dissatisfaction with management's responses regarding his complaint of
his previous confrontation with his supervisor on December 12, 2001, and
management's failure to take any appropriate remedial action thereafter.
Upon review, the Commission finds that management's alleged responses,
alone , do not constitute an actionable claim under the regulations.
There is no evidence in the record to show that complainant was subjected
to any adverse action or any disciplinary action as a result of the
alleged actions, i.e., concerning management's responses or management's
failure to take an action following the December 20, 2001 incident.
It is noted that the instant complaint does not concern complainant's
previous confrontation of December 20, 2001, rather it clearly concerns
management's action or inaction following that incident. It is also noted
that complainant has not indicated that he had another confrontation
with his supervisor after December 20, 2001. Based on the foregoing,
the Commission finds that the complaint fails to state a claim.
Accordingly, the agency's decision is hereby 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
August 22, 2003
__________________
Date