01A33106_r
08-28-2003
William H. Schramm, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
William H. Schramm v. Department of Transportation
01A33106
August 28, 2003
.
William H. Schramm,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 01A33106
Agency No. 4-03-4082
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
In a formal complaint dated March 20, 2003, complainant alleged that he
was subjected to discrimination on the bases of sex and in reprisal for
prior EEO activity, regarding an incident outside the agency's Toledo
Air Traffic Control Tower facility on December 18, 2002.
The record reflects that on December 18, 2002, complainant was a former
agency employee who had become separated from agency employment some
time previously.<1> The record further reflects that complainant filed
a civil action against the agency in United States District Court for
the Northern District of Ohio (Civil Action Docket No. 3:00CV7320).
In his civil action, complainant claimed that he was the subject of
harassment by the agency until his separation from agency employment.
Trial was scheduled for January 7, 2003.
The December 18, 2002 incident that is the subject of the instant
complaint relates to complainant's attempt to have four agency officials,
including his former supervisor, subpoenaed relating to the above
referenced civil action. Complainant noted that his former supervisor
was served with the subpoena by a process server. Complainant claimed
that when his former supervisor noted that complainant had identified him
on the processor server's behalf, the former supervisor became enraged;
followed him in his pick-up truck, and subjected him to abuse and threats.
In its final decision, dated March 27, 2003, the agency dismissed the
instant complaint for failure to state a claim.
The Commission determines that the complaint fails to state a claim
under the EEOC regulations because complainant failed to show 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. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994). The record
shows that complainant is a former employee of the agency, and the matter
identified in the instant complaint relates to an altercation with a
former supervisor following his being served with a subpoena in a civil
action complainant filed against the agency. Given these circumstances,
we determine that complainant has not alleged a personal loss or harm
regarding a term, condition, or privilege of his employment for which
there is a remedy through the EEO process. The agency's final decision
dismissing complainant's complaint is 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 28, 2003
__________________
Date
1 The actual separation date is unclear from
the record. On appeal, complainant asserts that he was constructively
discharged from agency employment on November 15, 1998. In response,
the agency also claims that complainant became separated from agency
employment in November 1998. However, in its final decision, the agency
stated that complainant was separated from agency employment on August
30, 2000. This disparity in dates does not affect our disposition of
the instant case. The Commission notes that complainant was no longer
an agency employee at the time of the alleged incident in December 2002,
irrespective of the precise date when he ceased being an agency employee.