01983697
06-29-1999
Wylie A. Turner, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Wylie A. Turner v. Department of the Navy
01983697
June 29, 1999
Wylie A. Turner, )
Appellant, )
)
v. ) Appeal No. 01983697
) Agency No. 98-67001-017
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. �621 et seq. The final agency decision
was dated March 27, 1998. The appeal was postmarked on April 7, 1998.
The appeal is accepted in accordance with EEOC Order No. 960.001, as
amended.
ISSUE PRESENTED
The issue is whether the agency properly dismissed appellant's complaint
for failure to state a claim.
BACKGROUND
Appellant initially contacted the agency's EEO Office on December 3, 1997.
The Counselor's report reflects that appellant alleged discrimination
on the bases of disability (permanent vision impairment), age (44)
and reprisal when his government driver's license was taken from
him by the agency. Appellant filed a formal complaint on March 3,
1998. In its final agency decision (FAD), the agency characterized
appellant's allegation as discrimination on the basis of reprisal when
his supervisor requested that he surrender his government driver's license
on November 5, 1997 and returned the license to him on December 3, 1997.
Appellant does not dispute the agency's statement of his allegation.
Appellant's government driver's license was taken as part of the
investigation into damage caused by appellant's operation of a fire
truck. The license was attached to the accident report to demonstrate
that appellant was a licensed driver. The FAD found that appellant's
allegation failed to state a claim. In reaching this conclusion, the FAD
asserts that appellant did not allege that the terms and conditions of
his employment were affected by the taking of his license. It said that
although appellant is a firefighter, he was not required to drive fire
vehicles as part of his normal job duties, nor was he required to drive
a fire vehicle during the period that his license was taken from him.
This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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 agree with the agency's conclusion that appellant's allegation does not
state a claim. Appellant is not an aggrieved employee. As the agency
asserted, appellant was not required to drive fire vehicles as part of
his normal job duties, nor was he required to drive a fire vehicle during
the period that his license was taken from him. Also, appellant's license
was returned to him after the investigation was completed. The Commission
finds, therefore, that appellant's allegation does not state a claim.
CONCLUSION
Based on the foregoing, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
June 29, 1999
______________ ______________________________
Date Carlton Hadden, Acting Director
Office of Federal Operations