0120103318
12-14-2010
William S. Moore, SR, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
William S. Moore, SR,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120103318
Agency No. 2010-23200-FAA-03
DECISION
Upon review, we find that the Agency's decision dated June 24, 2010,
dismissing Complainant's complaint for failure to state a claim is proper
pursuant to 29 C.F.R. �1614.107(a)(1). The Agency's decision dismissing
the complaint is AFFIRMED.
BACKGROUND
The record indicates that the Agency defined Complainant's complaint as
whether Complainant was discriminated against based on race (African
American), sex (male), and in reprisal for prior EEO activity when on
January 26, 2010, he was notified that there were slanderous allegations
of conduct against him (it was alleged that he threatened to retaliate
against the union; used profanity and displayed inappropriate and
distracting behavior) and that this alleged action was being investigated
by the Federal Aviation Administration (FAA) Security Division.
Complainant does not challenge the Agency's framing of the complaint.
ANALYSIS AND FINDINGS
The Agency stated that during the relevant time period, Complainant was
merely asked to participate in its investigation in response to claims
filed by its employee against Complainant. There is no evidence in the
record indicating that Complainant was subjected to any adverse action
or disciplinary action as a result of the alleged action. On appeal,
Complainant contends that since the alleged January 26, 2010 incident,
his schedule was changed from operational to administrative. We however
find that Complainant failed to specifically address this matter in
the complaint. Complainant notes that he subsequently filed another
complaint concerning his sick leave and retirement. After a review
of the record, we find that Complainant was not aggrieved with regard
to a term, condition or privilege of his employment as a result of the
alleged action. See Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Accordingly, the Agency's decision dismissing Complainant's complaint
is AFFIRMED.
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
12/14/10
__________________
Date
2
0120103318
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013