0120082445
09-09-2010
Sisir K. Chattopadhyay, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, (National Institutes of Health) Agency.
Sisir K. Chattopadhyay,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
(National Institutes of Health)
Agency.
Appeal No. 0120082445
Agency No. HHSNIHNIAID00992008
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 1, 2008, 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.
BACKGROUND
In his complaint, Complainant alleged that the Agency subjected him to discrimination on the bases of national origin ("Asiatic" Indian), age (65 years old at the time of the alleged discrimination), and reprisal for prior protected EEO activity under Title VII and the ADEA when:
On November 23, 2007, Complainant received documents relating to another EEO matter and discovered a copy of an unsigned personnel action form terminating his employment with the Agency.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency noted that Complainant's own statements in the instant matter and in prior EEO complaints indicated that he received the termination action in May 2006 and raised the termination in another EEO complaint. The Agency indicated that Complainant failed to show how he was harmed when he received an unsigned copy of the personnel action form in 2007.
Complainant appealed asserting that the Agency's final decision improperly defined the complaint at hand. Complainant indicated that his complaint was based on:
Among the 198 pages of documents [Complainant] received from the [Agency] on November 23, 2007, included Document numbered 53-54,... 57-58,... 136-137,... and 143-145. These documents gave the appearance of having generated by the [Agency's] administrative officials with the probable intent of separating [Complainant] from his position as proposed by [his Chief] on February 28. 2006....Although [Management] authorized the termination; the action was neither reviewed nor approved. There were no signatures on the form. In the past an informal document of reprimand was included in the official personnel file only when [Complainant] questioned its authenticity as an official document. [Complainant] believed that it is possible that a similar irregularity may have taken place in this instance as well. [Complainant] further asserted that these administrative failures are not only unethical but should be considered as manipulations of official U.S. Government documents which [he] believed, may be punishable by law, if upon investigation, the perpetrators are found to be guilty of such acts.
Complainant continued his appeal challenging the processing of this matter. The Agency requested that we affirm its decision to dismiss the matter.
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. Dept. of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
By Complainant's own statements and chronology of events and EEO complaints, Complainant indicated that he filed a formal complaint regarding the termination action in 2006. Therefore, it appears that the only issue here is Complainant's receipt of an unsigned copy of the personnel action form and other documents created during the termination process. We find that the receipt of those documents in November 2007 pursuant to discovery in the processing of Complainant's other EEO complaints does not state a claim in that Complainant has not shown how he was harmed by the receipt of these documents. Further, we note that Complainant has not alleged that the receipt of these documents is reasonably likely to deter the charging party or others from engaging in protected activity.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing the complaint pursuant to 29 C.F.R. � 1614.107(a)(1).
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
September 9, 2010
__________________
Date
2
0120082445
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120082445