Bob Cariffe, Complainant,v.Norman Y. Mineta, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionNov 30, 2000
01a10541 (E.E.O.C. Nov. 30, 2000)

01a10541

11-30-2000

Bob Cariffe, Complainant, v. Norman Y. Mineta, Secretary, Department of Commerce, Agency.


Bob Cariffe v. Department of Commerce

01A10541

November 30, 2000

.

Bob Cariffe,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Commerce,

Agency.

Appeal No. 01A10541

Agency No. 00-63-014060

DECISION

The instant matter is being processed pursuant to a Memorandum of

Understanding (MOU) entered into by the agency, the Bureau of the Census,

and the United States Equal Employment Opportunity Commission. The MOU

was entered into in order to process complaints arising from the 2000

Decennial Census more effectively and efficiently.

Pursuant to the MOU, individuals file their complaints directly with

the Commission. The Commission, through its Washington, D.C. Field

Office, then conducts an early assessment of complaints and neutral

evaluation of cases. The Washington, D.C. Field Office of the Commission

establishes a record of the complaint by obtaining an affidavit from the

complainant and by contacting an agency official to obtain the necessary

information on the complaint. Based on the record established by the

Washington, D.C. Field Office, the Washington, D.C. Field Office will:

(1) notify the agency that the individual has elected not to file a

formal complaint; (2) issue a decision dismissing the complaint and

notify the complainant of his or her right to appeal the decision to

the Office of Federal Operations; (3) conduct settlement negotiations;

or (4) notify the complainant that the complaint has been accepted and

forward the complaint to the agency for further investigation.

The Commission's Washington, D.C. Field Office dismissed the instant

complaint for failure to state a claim. Specifically, the Field Office

found that complainant failed to raise his claims on a protected basis.

In his complaint, complainant argued that he was not given other

jobs/assignments in retaliation for statements he made to his Crew

Leader.

In counseling, complainant explained that his crew leader agreed

to call him, but failed to do so. The crew leader then criticized

complainant for not calling her. In his formal complaint dated May 10,

2000, complainant contends that he told the crew leader that it was

�asinine� of her to expect him to call when she agreed to call him.

In an affidavit dated July 16, 2000, complainant asserted that he told

the crew leader she was incapable of handling her duties with the agency

and work in a restaurant. Complainant did not raise any other basis for

his complaints in counseling, his formal complaint, or in his affidavit.

On appeal, complainant argues for the first time that he was discriminated

against because of his race. He contends that he was not given further

assignments because he, as a Caucasian male, dared to argue with an

Asian female.

EEOC Regulations require the dismissal of complaints that fail to

state a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim,

complainant must allege present harm inflicted on the basis of race, sex,

religion, national origin, age, disability, or prior protected activity.

See Diaz v. Department of the Air Force, EEOC Request No. 05931049

(April 21, 1994). In claims alleging retaliation, complainant must

have engaged in prior protected activity to state a cognizable claim.

Prior protected activity includes opposition to practices made unlawful

by Title VII of the Civil Rights Act of 1964 (Title VII), as amended,

42 U.S.C. � 2000e et seq., the Age Discrimination in Employment Act of

1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,

or the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq.

In the present complaint, complainant has presented no evidence that

he engaged in prior protected activity. Therefore, his retaliation

complaint fails to state a claim. Further, complainant failed to raise

any other basis for his complaint until the present appeal. His belated

attempt to provide a basis for his complaint is insufficient.

CONCLUSION

Accordingly, the Field Office's dismissal is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

November 30, 2000

__________________

Date