Clous W. Gill, Complainant,v.William M. Daley, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionFeb 1, 2000
01a01462 (E.E.O.C. Feb. 1, 2000)

01a01462

02-01-2000

Clous W. Gill, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.


Clous W. Gill, )

Complainant, )

)

v. ) Appeal No. 01A01462

) Agency No. 99-63-00797D

William M. Daley, )

Secretary, )

Department of Commerce, )

Agency. )

______________________________)

DECISION

The instant matter is being processed following the implementation of

a Memorandum of Understanding (MOU) entered into by the agency, the

Bureau of the Census, and the United States Equal Employment Opportunity

Commission.<1> 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 or 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.

In the instant matter the Washington, D.C. Field Office of the Commission

issued a decision dated October 28, 1999, dismissing the instant complaint

for failing to state a claim. In the complaint complainant claimed that

she was discriminated against on the bases of race and retaliation when:

Inner-office preparation of potential hires on test and 612 form to

friends, which interrupted FQPV training.

Management does not reflect the community it serves, over 60% of New

Orleans' population is black.

There is manipulation of job allocations.

Job harassment.

The Commission finds that the prior decision properly found that

complainant had failed to show that she engaged in activity protected

under 29 C.F.R. � 1614.101(b). Therefore, we find that the claim of

retaliation was properly dismissed for failing to state a claim pursuant

to 64 Fed. Reg. 37,644, 37656 (to be codified and hereinafter cited as

29 C.F.R. � 1614.107(a)(1)).

Based on the complaint itself and the statement by the complainant

gathered by the EEOC during the EEOC's neutral and independent

evaluation of the complaint, the Commission agrees with the earlier

decision's finding that complainant's claim of race discrimination is

insufficient to state a claim and is properly dismissed for failing to

state a claim pursuant to � 1614.107(a)(1). Complainant has not show how

she was personally aggrieved by the incidents cited in the complaint.

Furthermore, the incidents cited by complainant do not rise to a

level necessary to state a claim of harassment. Cobb v. Department

of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Even if

the incidents described by complainant were severe or frequent, the

Commission agrees with the previous decision's conclusion that complainant

has failed to show that the incidents at issue were related to her race.

Regarding the job manipulation claim, complainant herself states that

a person of her same race, Black, was hired for one of the positions in

question (Assistant Manager for Field Operations). Regarding the other

positions, Assistant Manager for Administration and Assistant Manager

for Recruiting, complainant herself states that she was informed that

was not qualified for the Administration position and that a "veteran"

would likely be selected for the Recruiting position. The Commission

agrees with the previous decision's conclusion that complainant has failed

to provide any evidence showing that the job manipulation incidents at

issue were related to her race. Therefore, we find that the instant

complaint is properly dismissed for failing to state a claim pursuant

to � 1614.107(a)(1).

The Washington, D.C. Field Office's decision dismissing the complaint

is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

February 1, 2000

DATE

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________________ _________________________ Date

Equal Employment Assistant

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 64 Fed. Reg. 37,644 (1999),

where applicable, in deciding the present appeal. The regulations,

as amended, may also be found at the Commission's website at

WWW.EEOC.GOV.