01975863
10-20-1998
Arnold Gerardo, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Arnold Gerardo v. Department of the Treasury
01975863
October 20, 1998
Arnold Gerardo, )
Appellant, )
)
v. ) Appeal No. 01975863
) Agency No. 97-1226
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated June 26, 1997, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.107(a) and (b). The Commission accepts the
appellant's appeal in accordance with EEOC Order No. 960, as amended.
The appellant's May 9, 1997 complaint alleged that an agency official
had harassed him for several years based on his sex, national origin
(Hispanic), age, and the perception that the appellant had participated
in prior whistle-blowing activity.
The agency decision described 24 specific examples of the alleged
harassment. The decision dismissed incidences 1 through 16 for untimely
EEO Counselor contact. The decision found that the untimely raised
incidents should not be deemed timely under a continuing violation
theme because the appellant had suspected discrimination at the time
the incidents occurred. The decision dismissed allegations 17 through
24 for failure to state a claim, including failure to state a hostile
work environment claim.
On appeal, the appellant relies on the Commission's decision in Osborne
v. Department of the Treasury, EEOC Request No. 05960111 (July 19,
1996), as holding that a complaint which alleges harassment states a
claim. However, the holding of the Osborne case has been clarified by
the Commission in Cobb v. Department of the Treasury, EEOC Request No.
05970077 (March 13, 1997).
In the Cobb decision, the Commission held that even where a complaint does
not challenge an agency action or inaction regarding hiring, termination,
compensation, or any other specific term, condition, or privilege of
employment, the complaint may still state a claim if the complaint
allegations are sufficient to state a hostile or abusive environment
claim, citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)
(harassment is actionable if it is sufficiently severe or pervasive to
alter the conditions of the complainant's employment). A complainant is
not required to use any specific words or phrases to state a hostile or
abusive work environment claim. Instead, a complainant must allege facts
which, when considered together and assumed to be true, indicate that
the complainant may have been subjected to discriminatory harassment
that was sufficiently severe or pervasive to alter the conditions of
his or her employment. Cobb, supra.
The Commission finds that the appellant's complaint does not state a
timely raised hostile work environment claim. The Commission finds that
the agency properly dismissed incidents 1 through 16 as untimely raised.
Several of these incidents were discrete acts which had the degree of
finality that should have alerted the appellant to assert his EEO rights
prior to March 6, 1997, for example: the issuance of a "fully successful"
performance appraisal in January 1995; the receipt of only a $1000 award
in 1996; the issuance of a proposed removal notice in July 1996; and
a reassignment soon thereafter. If the appellant had timely contacted
an EEO counselor about these incidents, he also could have raised the
remaining untimely raised incidents. See Sabree v. United Brotherhood of
Carpenters and Joiners Local No. 33, 921 F.d. 396, 402 (1st. Cir. 1990)
(a knowing plaintiff has an obligation to file promptly with the EEOC
or lose his claim); Roberts v. Gadsden Memorial Hospital, 850 F.d. 1549
(11th Cir. 1988) (per curiam) a claim arising out of an injury which is
"continuing" only because a plaintiff knowingly fails to seek relief is
exactly the sort of claim that Congress intended to bar by the limitations
period).
As to incidents 17 through 24, even if proven true, these
incidents/remarks do not suggest that the appellant's workplace was
permeated with discriminatory intimidation, ridicule, and insult that
was sufficiently severe or pervasive to alter the conditions of his
employment and create an abusive working environment. See Harris at 21;
Backo v. United States Postal Service, EEOC Request No. 05960227 (June
10, 1996) (supervisor's remarks on several occasions, unaccompanied by
any concrete action, were not sufficient to state a claim). For example,
the appellant alleges that the Acting Director "implied" at one meeting in
March 1997 that it was his fault that modifications in empirical data were
needed. The appellant also alleges that on two other occasions in March
1997 the Acting Director criticized him in front of another employee.
The appellant further alleges that the Acting Director requested in April
1997 to give the opening remarks at a conference in order to discredit
his work. Similarly, the remaining alleged incidents/remarks do not
suggest that the appellant was subjected to an environment permeated
with intimidation, ridicule and insult.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of the appellant's May 9, 1997 complaint.
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:
October 20, 1998
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations