01A33282_r
09-08-2003
Woodrow M. Wilson, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Woodrow M. Wilson v. Department of the Air Force
01A33282
September 8, 2003
.
Woodrow M. Wilson,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A33282
Agency No. 9KOR03001
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dismissing his complaint of unlawful employment discrimination
in violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. In his complaint, as defined by the
agency, complainant alleged that he was subjected to discrimination on
the bases of age and veteran status, when:
On October 9, 2002, complainant was subjected to working in an
intimidating, hostile and offensive work environment.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim, finding that complainant's complainant
did not describe how complainant suffered any loss, was subjected to
any adverse personnel action or was otherwise aggrieved as a result
of the alleged discriminatory events. The agency further found that
complainant's status as a veteran was not a basis for an EEO complaint.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
We find complainant's narrative complaint, which incorporates by
reference, his pre-complaint submissions and several witness statements,
vaguely describes episodes during which complainant's supervisor,
S1, undertakes to coerce, intimidate, threaten and otherwise "bully"
complainant into compliance with his orders, while affording preferential
treatment to another, younger employee, in the fulfillment of her
agency duties, without specifying the dates of occurrence, discrete
actions or adverse consequences, except in general terms. For instance,
complainant complains that he is ordered to "clean up" accounting problems
created by the younger employee (under 40 years of age) at S1's request.
Complainant also alleges that S1 has attempted to coerce complainant
into acquiescence regarding S1's "cooking of the books." We find
complainant's vague narrative descriptions do not describe incidents
either severe or pervasive enough to state an overall claim of harassment.
We concur with the agency that complainant's status as a veteran is not
a basis for discrimination within the purview of the laws enforced by
the Commission. We find the agency properly dismissed the complaint
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Accordingly, we AFFIRM the agency's dismissal of the complaint.
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
September 8, 2003
__________________
Date