01A24551_r
08-01-2003
William M. Dillon, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
William M. Dillon v. Department of the Army
01A24551
August 1, 2003
.
William M. Dillon,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A24551
Agency No. ARBLUEG02JUN0001
DECISION
Complainant appealed to this Commission from the agency's June 30,
2002 dismissal of his employment discrimination complaint. In his
complaint, complainant alleged discrimination on the bases of sex (male)
and age when:
Complainant was unaware of security incident reports dealing with security
guards searching complainant's badge or inspecting his care for bombs
until filing a Freedom of Information Act (FOIA) request on May 14, 2002;
Security guards verbally harassed and made false statements about
complainant;
Complainant is concerned that positions are being created to accommodate
personnel for safety positions, and that the contractor received payment
for illegal charges;
Complainant is fearful that coworkers have told lies against complainant;
and
Complainant was issued a defective computer, security guards laughed
at complainant, and complainant had an �incident� with a particular
security guard.
The agency dismissed claims (1) - (4) for failure to state a claim.
The agency noted that claim (1) involved security that all employees must
go through when entering the agency's complex. It found that complainant
suffered no harm to a term, condition or privilege of employment in
claims (1), (3), and (4). Finally, the agency found that claim (5)
involved matters already raised in Agency Nos. 201C0010 and 203C0029.
On appeal, complainant notes that the agency spent $7,000.00 to process
his security clearance, and therefore shouldn't use more money to pay
contractors to inspect his car for bombs every morning. He explains
that the security guards and coworkers falsely accused him of being
violent and dangerous. Complainant contends that he was yelled at for
�slow rolling� through a stop sign.
In a separate letter, dated September 10, 2002, complainant argues that
the agency misidentified his claims. He contends that he never complained
about car searches in claim (1), but rather referred to �vicious lies�
told about complainant in efforts to �incite violence.� Complainant
further asserts that claim (1) concerned the security contractor obtaining
reimbursement for illegal charges.
Complainant also spends considerable effort to explain how the agency
has failed to comply with contract requirements, illegally overpaid
contractors, and changed the requirements of a vacancy in order to match
the qualifications of a particular applicant. Complainant does not
contend that he applied for this position, or otherwise did not gain the
position because of the agency's manipulation of the selection process.
In the September 10, 2002 letter, complainant clarifies claim (5).
He asserts that he was never issued a defective computer, but received
an old, outdate printer, without any instructions on how to use it.
Complainant asserts that he was unable to print, until he learned several
years later that he could used a network printer.
EEOC Regulations require the dismissal of complaints that fail to
state a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim,
complainant must allege harm to a term, condition, or privilege of
employment on the basis of race, color, religion, sex, national origin,
age, disabling condition, or reprisal for prior protected activity.
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
21, 1994). Where complainant alleges a hostile work environment, his
claim is actionable if it sufficiently severe or pervasive to alter the
conditions of complainant's employment. See Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993).
As an initial matter, the Commission notes that it does not have
jurisdiction over whistle blower complaints; whistle-blowing is not
protected EEO activity. However nefarious complainant believes the
agency's contracting practices to be, he has not shown that they effect a
term, condition, or privilege of his employment. Therefore, the agency's
dismissal of claim (3) was proper.
Claims (1), (2), and (4) also do not state a claim. Further,
complainant's assertions on appeal of how claim (1) should be framed
involves complainant's dissatisfaction with the money being spent on
the contractors, not personal harm to a term, condition, or privilege
of his employment. Complainant argues that he was injured by the lying
of coworkers and contractors, but he has not shown any detriment to
his employment. With regard to the incident reports from claim (1),
complainant has not shown any repercussions he suffered as a result of the
reports. Further, the Commission notes that complainant's arguments on
appeal corroborate the guards' reports; the reports address complainant's
complaints to security officers about having his car searched despite his
security clearance, suggestion that the guards look out for �mountain
people� instead of him, and inquiry of how much money was wasted on
their contract and salaries.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
Claim (5) involves the same matters identified in Agency No. 0201C0010.
Complainant disputes this finding, but offers no arguments or evidence
to distinguish his present claims from those he has previously raised.
CONCLUSION
Accordingly, the agency's dismissal 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 1, 2003
__________________
Date