0120130664
05-16-2013
Timothy S. Swearson, Complainant, v. John M. McHugh, Secretary, Department of the Army (National Guard Bureau), Agency.
Timothy S. Swearson,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army
(National Guard Bureau),
Agency.
Appeal No. 0120130664
Agency No. 413412006
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 29, 2012, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Draftsman at the Agency's Civil Engineering Technical Service Center facility in Minot, North Dakota.
On June 13, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability (physical) when, on March 29, 2012, a management official parked in a space reserved for persons with disabilities.
According to the EEO counselor's report, the Chief of the Civil Engineering Technical Service Center parked in the restricted area whenever he thought Complainant would not be at work. Complainant is an individual who is authorized to park in the spaces reserved for persons with disabilities. The Agency counseled the management official that it was wrong and illegal for him to park in the space designated for persons with disabilities. There is no indication that Complainant was denied access to parking as the area has other reserved spaces in the area.
The Agency dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency reasoned that Complainant was not an aggrieved individual because he did not allege that he suffered harm.
The instant appeal followed.
ANALYSIS AND FINDINGS
Neither party filed a brief on appeal.
In this case, there is no allegation that the Agency took any adverse action against Complainant or failed to take action to stop the management official from parking where he should not have been parking.
Where the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint. The Commission finds that the complaint fails to state a claim under the EEOC regulations because Complainant failed to allege that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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 tends 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
May 16, 2013
__________________
Date
2
0120130664
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130664