0120082164
06-20-2008
Michael Bishop, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Michael Bishop,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120082164
Agency No. HS08CBP001306
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 3, 2008, 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.
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 complaint dated December 10, 2008, complainant alleged that he was
subjected to discrimination on the basis of age (58) when:
1. His supervisor requested that he complete a memorandum without having
been trained to do so, imposed an unreasonable completion date, and the
memorandum was an unfamiliar work assignment for complainant;
2. His supervisor sent him an email accusing him of not being a team
player and requesting that he complete the contingency plan portion of
the memorandum on his own;
3. His supervisor sent him an email about the memorandum being late;
4. His supervisor inquired about the status of the memorandum in an
intimidating manner;
5. His supervisor requested that he prepare another memorandum regarding
the whereabouts of his service vehicle and refused to put the request
in writing;
6. His supervisor requested that he sign a "right to union representation"
form, and in a threatening manner, refused to disclose the reason for
the request;
7. His supervisor requested that complainant and all his co-workers
disclose whether they were taking medication that would affect their
job performance or ability to drive a vehicle.1
The Commission finds 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). Moreover, to the extent
complainant is claiming a discriminatory hostile work environment, we find
that the events described, even if proven to be true, would not indicate
that complainant has been subjected to harassment that was sufficiently
severe or pervasive to alter the conditions of her employment. See Cobb
v. Department of the Treasury, Request No. 05970077 (March 13, 1997).
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
June 20, 2008
__________________
Date
1 We note that complainant has not alleged a violation of the
Rehabilitation Act of 1973.
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0120082164
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082164