01A42447_r
10-28-2004
Tommy L. Swanson, Complainant, v. Stephen A. Perry, Administrator, General Services Administration, Agency.
Tommy L. Swanson v. General Services Administration
01A42447
October 28, 2004
.
Tommy L. Swanson,
Complainant,
v.
Stephen A. Perry,
Administrator,
General Services Administration,
Agency.
Appeal No. 01A42447
Agency No. 037RPBSTLS8(2)
DECISION
Complainant initiated contact with the agency's EEO Office on April 30,
2003. On June 24, 2003, complainant filed a formal EEO complaint wherein
he claimed that he was discriminated against on the bases of his race
(African-American) and in reprisal for his previous EEO activity under
Title VII when (1) he was subjected to continuous harassment by way of
an investigation conducted by the Office of Inspector General; and (2)
when the agency refused reimbursement for money spent on an approved
trip to Washington, D.C. for a Blacks in Government Conference wherein
complainant submitted a travel voucher.
By decision dated October 30, 2003, the agency dismissed the complaint
pursuant to 29 C.F.R. �1614.107(a)(1) on the grounds of failure to
state a claim. The agency determined with regard to claim (1) that no
personnel action has been taken against complainant as a result of the
investigation. The agency stated that the investigation was conducted in
order to determine the facts surrounding the travel voucher claim. The
agency determined that complainant failed to show that the investigation
affected a term, condition, or privilege of his employment. As for
claim (2), the agency stated that complainant was informed that he could
resubmit the travel voucher minus a request for reimbursement for lodging.
The agency also dismissed claim (2) pursuant to 29 C.F.R. �1614.107(a)(2)
on the grounds that complainant failed to initiate contact with an EEO
Counselor in a timely manner. The agency determined that complainant
was notified on September 9, 2002, that his travel voucher was rejected,
but he did not contact an EEO Counselor until April 30, 2003, after the
expiration of the 45-day limitation period.
On appeal, complainant contends that the investigation conducted by the
agency's Office of Inspector General was unwarranted.
With regard to claim (1), we find that the investigation conducted by the
Office of Inspector General did not cause complainant to suffer personal
harm to a term, condition, or privilege of his employment. Complainant
has not presented any evidence that action was taken against him as a
result of the investigation. The Commission has previously held that
being subject to an internal investigation does not render an individual
aggrieved under the EEOC Regulations. See Johnson v. Department of the
Navy, EEOC Request No. 05960699 (April 16, 1998); Mattocks v. Department
of the Navy, EEOC Request No. 05950549 (August 29, 1996). Further,
the investigation was not of sufficient severity or pervasiveness to
constitute harassment. We find that complainant has failed to state a
claim with respect to claim (1).
With respect to claim (2), concerning the denial of the travel voucher,
we observe that complainant was denied reimbursement on September 9, 2002,
but complainant did not initiate contact with an EEO Counselor until
April 30, 2003. This contact was clearly after the expiration of the
45-day limitation period for contacting an EEO Counselor. We find that
complainant has failed to submit adequate justification for an extension
of the 45-day limitation period for contacting an EEO Counselor.<1>
Accordingly, the agency's dismissal of this complaint was proper and is
AFFIRMED for the reasons stated 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
October 28, 2004
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1In light of our affirmance of the agency decision on this grounds, we
need not address the agency's alternative grounds for dismissal of claim
(2).