01981066
10-21-1998
Andres Martinez Jr., )
Appellant, )
)
v. ) Appeal No. 01981066
) Agency No. FW-97-39
Andrew M. Cuomo, )
Secretary, )
Department of Housing and )
Urban Development, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed the three allegations in appellant's complaint, pursuant to
EEOC Regulation 29 C.F.R. �1614.107(a), for failure to state a claim.
Appellant alleged that he was subjected to discrimination in reprisal
for prior EEO activity when:
On February 25, 1997, the Supervisory Equal Opportunity Specialist,
Fair Housing and Equal Opportunity, Enforcement Division (SEOS),
questioned appellant about being away from his workstation;
On April 7, 1997, the SEOS questioned appellant about being absent from
his workstation for over an hour; and
On April 9, 1997, appellant learned that an investigator from the Texas
Commission on Human Rights (TCHR) provided management officials with
information concerning appellant's performance.
On October 28, 1997, the agency issued a final decision dismissing all
three allegations for failure to state a claim. Specifically, the agency
determined that appellant failed to show that he suffered any harm as
a result of the identified incidents, and was, therefore, not aggrieved.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which 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).
In the instant case, appellant failed to show that as a result of the
incidents identified in allegations (1) through (3), he suffered harm with
respect to the terms, conditions, or privileges of his employment. The
only harm appellant identified was the potential use of the information
obtained from the TCHR to terminate appellant in the future. This,
we find, is merely speculative and possible future harm. See Stroud
v. Department of the Treasury, EEOC Appeal No. 01952101 (October 26,
1995); Spencer v. Department of the Navy, EEOC Appeal No. 01942408 (June
1, 1994). There is no present injury to appellant. Accordingly, the
absence of an actual present harm dictates the conclusion that appellant
has failed to state a claim. See Parks v. Department of Defense, EEOC
Request No. 059503141 (September 11, 1995) citing Drummond v. Department
of the Army, EEOC Request No. 05940574 (February 7, 1995).
Accordingly, the agency's final decision dismissing appellant's complaint
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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
Oct. 21, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations