01a02816
03-30-2001
David T. Gonzales, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
David T. Gonzales v. Department of the Treasury
01A02816
03-30-01
.
David T. Gonzales,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A02816
Agency No. 00-2088
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final agency
decision, concerning 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. Upon review, the Commission finds that
complainant's complaint was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(1).
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for failure to state a claim.
BACKGROUND
Complainant filed a formal EEO complaint on December 22, 1998 in which
he alleged that he was subjected to a hostile work environment based
on his sex. Complainant's complaint derives from Co-worker A's EEO
complaint in which she alleged sexual harassment. According to Co-worker
A, complainant told Group Manager that Co-worker A requested sexual
favors from complainant.<1>
In its final decision, the agency dismissed complainant's complaint,
concluding that complainant was not aggrieved because he had not suffered
loss or harm with respect to a term, condition or privilege of employment.
The agency further reasoned that a claim arising from an EEO investigation
fails to state a claim.
On appeal, complainant contends, among other things, that he was subjected
to harassment by his supervisor, co-workers and Division Chiefs when:
(1) the location of his office was isolated in an intimidating fashion
after space alterations were made in the Harlington post of duty; (2)
he was given less favorable work assignments by his supervisor; and (3)
he was hindered from performing his job duties efficiently when females
in the office created a hostile work environment.<2>
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(1) requires an agency to dismiss
a complaint, or portion thereof, that 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, complainant challenges the filing of an EEO
complaint by another employee. To the extent that complainant is
challenging the agency's processing or investigation of the EEO complaint
filed by another individual, the allegation fails to state a claim.
The Commission has previously held that the filing of an EEO complaint
by another individual does not constitute an injury by the agency to a
term, condition or privilege of employment. To allow the processing of
a complaint by an employee, wherein the employee challenges the filing
of an EEO complaint by a co-worker or other agency employee, would have
a chilling effect on the filing of EEO complaints by aggrieved persons.
See Blinco v. Department of the Treasury, EEOC Request No. 05940194 (May
25, 1994). Moreover, there is no remedial action available to complainant
when another individual files an EEO complaint, as the agency has no
authority to restrain an employee from raising EEO violations through the
EEO complaint process. The Commission further notes that an agency is
legally obligated to investigate a claim of sexual harassment. See Rogers
v. Department of Defense, EEOC Request No. 05940157 (February 24, 1995).
Therefore, we find complainant's complaint was properly dismissed pursuant
to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
CONCLUSION
Accordingly, the agency's final decision dismissing complainant's
complaint 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
____03-30-01______________
Date
1The record indicates that Co-worker A discovered the rumor when Co-worker
B told her of it. Co-worker B contends that she heard the rumor from
Group Manager. Group Manager denies having knowledge of the rumor.
2Complainant is advised that if he wishes to pursue, through the EEO
process, these new allegations, he shall initiate contact with an EEO
counselor within 15 days after he receives this decision. The Commission
advises the agency that if complainant seeks EEO counseling regarding
the above named allegations within the above 15 day period, the date
complainant filed the appeal statement, March 3, 2000, shall be deemed
to be the date of initial EEO contact, unless he previously contacted
a counselor regarding these matters, in which case the earlier date
should serve as the EEO counselor contact date. Alexander J. Qatsha
v. Department of the Navy, EEOC Request No. 05970201 (January 16,
1998).