Anthony M. Carosv.Department of Justice 01A03630 September 27, 2000 . Anthony M. Caros, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionSep 27, 2000
01a03630 (E.E.O.C. Sep. 27, 2000)

01a03630

09-27-2000

Anthony M. Caros v. Department of Justice 01A03630 September 27, 2000 . Anthony M. Caros, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.


Anthony M. Caros v. Department of Justice

01A03630

September 27, 2000

.

Anthony M. Caros,

Complainant,

v.

Janet Reno,

Attorney General,

Department of Justice,

Agency.

Appeal No. 01A03630

Agency No. I-99-E114

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated March 22, 2000, dismissing 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.<1>

The record reveals that on June 14, 1999, complainant, a GS-9 employee,

filed a formal EEO complaint as a third party claiming that he was the

victim of unlawful employment discrimination on the basis of his sex

(male) when his supervisor stated to a co-worker that men are basically

worthless and cannot be relied upon to do anything right. In addition,

complainant states due to his supervisor's attitude towards men, he has

been denied a promotion to the GS-11 level in Toronto.

On March 22, 2000, the agency issued a final decision dismissing the

complaint. With regard to the alleged statement made by his supervisor,

the agency found that complainant was not an aggrieved employee and

therefore, this claim failed to state a claim. With respect to the

non-selection, the agency dismissed this claim on the grounds that

complainant failed to raise this issue with the EEO Counselor.

With respect to the alleged biased comment from complainant's supervisor,

the Commission finds that complainant has failed to show how he was

aggrieved by the comment. The Commission finds that this claim was

properly dismissed pursuant to the regulation set forth at 29 C.F.R. �

1614.107(a)(1) for failure to state a claim. We note, however, that

this alleged comment may be raised as evidence of discriminatory animus

with regard to complainant's non-selection.

With regard to complainant's claim of non-selection, the Commission finds

that the agency incorrectly dismissed this claim for not raising it with

an EEO counselor. EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides

that an agency shall dismiss a complaint which raises a matter that has

not been brought to the attention of an EEO Counselor, and is not like

or related to a matter on which the complainant has received counseling.

According to the EEO Counselor's report, complainant is claiming that his

supervisor has stated that men are so stupid and basically worthless, and

as a result of this attitude towards men, complainant's career progress

is being hindered. Therefore, complainant's claim that he was not

promoted to a GS-11 level position clarifies his original claim that his

supervisor's attitude towards men has hindered his career. Accordingly,

this claim is like or related to the claim for which complainant has

received EEO counseling and was improperly dismissed by the agency.

The agency's decision dismissing the claim with respect to the comment

is AFFIRMED. The agency's decision dismissing the non-selection claim is

REVERSED. The non-selection claim is REMANDED to the agency for further

processing in accordance with this decision and applicable regulations.

ORDER (E0800)

The agency is ORDERED to process the remanded claim in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0800)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement of

the order. 29 C.F.R. � 1614.503(a). The complainant also has the right

to file a civil action to enforce compliance with the Commission's order

prior to or following an administrative petition for enforcement. See 29

C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,

the complainant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action

for enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the

complainant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0800)

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 27, 2000

__________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.