01995506
12-05-2000
Eric R. Tristani, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Eric R. Tristani v. U.S. Department of the Treasury
01995506
December 5, 2000
.
Eric R. Tristani,
Complainant,
v.
Lawrence H. Summers,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01995506
Agency No. 99-2263
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).<1>
In a complaint dated May 17, 1999, the complainant claimed that he
was subjected to sexual harassment<2> due to a hostile work environment
when during a two month period (February 1999 and March 1999), a female
co-worker made disparaging comments about religion, men, and homosexuals.
As set forth in the agency's decision, these comments are as follows:
�If you're a Christian, you'll go to heaven;� �Men have no class if
they ask a woman her age;� I don't want my son to be a male stripper
because all male strippers are gay and I don't want my son to turn out
like them;� �That's a typical man for you�(complainant claims that this
general type of comment was repeated frequently); and, �There's always
a side a husband never shows to his wife.� Complainant also claims
retaliatory harassment concerning conduct toward him after he reported
the comments to their mutual supervisor, who held a meeting in an attempt
to resolve the problem. The claimed retaliatory conduct consisted of
repeated staring and comments ridiculing complainant's report of the
claimed sexual harassment. For example, complainant contends that he
witnessed remarks between other co-workers, such as: �...you better be
careful what you say (in complainant's presence), these walls could talk.�
The Commission finds that the complaint fails to state a claim under 29
C.F.R. Part 1614 because even if proven to be true, the co-worker's
conduct and comments identified by complainant, both before and after
the supervisor's meeting, are not sufficiently severe or pervasive to
alter the conditions of his employment. See Cobb v. Department of the
Treasury, Request No. 05970077 (March 13, 1997). Moreover, although the
Commission takes a broad view of reprisal claims, wherein a complainant is
protected against any discrimination which is reasonably likely to deter
protected activity, here we find that complainant has neither argued
nor presented evidence that the claimed retaliatory conduct deterred
him from engaging in protected activity. See EEOC Compliance Manual,
"Investigating, Analyzing Retaliation Claims," paragraph 8-II(D)(3).
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
December 5, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
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.
2On appeal, complainant asserts that his complaint is more appropriately
framed as sexual harassment, rather than harassment based on sex and
religion, as the agency determined in its final decision. However,
in this case, we determine that complainant has failed to state an
actionable claim of harassment under either formulation.