01A23192_r
08-15-2002
Ke'Van C. Pointer, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Ke'Van C. Pointer v. Department of the Army
01A23192
August 15, 2002
.
Ke'Van C. Pointer,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A23192
Agency No. BXHMFO0203C0230
DECISION
The Commission finds that the agency's April 15, 2002 decision dismissing
complainant's complaint was proper. Complainant alleges that he was
discriminated: (1) on the bases of race, color, and reprisal when he
was denied annual leave on December 24, 2001; and (2) on the bases of
race, color, and religion when he was subjected to harassment when, on
September 18, 2001, his supervisor said, �turn that god damn machine off,
you are wasting water. We have a two rack rule around her, I thought
that you were a Christian, but you are worshipping [sic] the devil
acting stupid.� The agency dismissed both claims for failure to state
a claim pursuant to 29 C.F.R. � 1614.107(a)(1). Further, the agency
dismissed claim 2 for untimely EEO Counselor contact pursuant to 29
C.F.R. � 1614.107(a)(2).
According to an Executive Order issued by President George W. Bush on
December 5, 2001, the Federal Government was closed on December 24, 2001.
In regards to claim 1, we find that complainant did not suffer harm to a
term, condition, or privilege of employment by being denied annual leave,
since none was required. Therefore, the agency's dismissal for failure
to state a claim was appropriate.
Regarding claim 2, we find that complainant has failed to show harm to
a term, condition or privilege of employment. Further, complainant has
failed to show that the agency's actions were severe or pervasive enough
to constitute harassment. Therefore, claim 2 was properly dismissed
for failure to state a claim. Since claim 2 is properly dismissed for
failure to state a claim, we will not make a determination as to whether
claim 2 was properly dismissed on other grounds.
The agency's decision dismissing complainant's complaint is AFFIRMED
for reasons set forth herein.
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 15, 2002
__________________
Date