Jacques M. Saint-Surin, Complainant,v.William M. Daley, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionAug 29, 2000
01a03424 (E.E.O.C. Aug. 29, 2000)

01a03424

08-29-2000

Jacques M. Saint-Surin, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.


Jacques M. Saint-Surin v. Department of Commerce

01A03424

August 29, 2000

.

Jacques M. Saint-Surin,

Complainant,

v.

William M. Daley,

Secretary,

Department of Commerce,

Agency.

Appeal No. 01A03424

Agency No. 00-56-00168

DECISION

Complainant timely appealed the agency's final decision (FAD) dismissing

his complaint, pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)),

for failure to state a claim.<1> Complainant, a Patent Examiner,

GS-1224-13, contacted the EEO Counselor on November 22, 1999, alleging

that he was subjected to discrimination on the bases of race (Black),

color (Black), sex (male), national origin (Haitian), and age (DOB:

May 27, 1953) when (1) complainant found a note dated October 31, 1999,

in one of his cases where his supervisor made discriminatory comments

about his performance; and (2) complainant was given a Written Warning

of Unacceptable Performance Memo dated July 15, 1999.

Complainant filed his formal complaint on February 3, 2000. In his

complaint, he listed the two incidents referenced above that he believed

to be discriminatory. However, he appeared to have scratched out the

incident listed in claim (2) and placed his initials by the scratch

marks. The agency then issued its FAD dismissing claim (1) pursuant to �

1614.107(a)(1) for failure to state a claim. Based on the markings over

claim (2), the FAD assumed that complainant intended to only raise claim

(1). Further, the FAD stated that had complainant raised this claim in

his complaint, it would have been dismissed by the agency pursuant to 64

Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited as

29 C.F.R. � 1614.107(a)(2)), for untimeliness. It is from this decision,

complainant appeals.

On appeal, complainant contends that claim (2) was timely because the

claim was not about the Written Warning but about an evaluation he

received during the Performance Improvement Period (PIP) following

the Written Warning. Further, complainant states that the agency's

conclusion that complainant only filed a claim with regard to the comment

was incorrect. Finally, complainant argues that claim (1) was not only

a comment but an example of the agency's attempts to remove cases from

him and transfer them to other examiners.

As to claim (1), the regulation set forth at 29 C.F.R. � 1614.107(a)(1)

provides, in relevant part, that an agency shall dismiss a complaint

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, 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). For the first time

on appeal, complainant contends that the note was a reason given by his

supervisor to transfer the case to another examiner. However, based upon

review of the record, the Commission finds that claim (1) is based on

comments made by the supervisor regarding complainant's performance on

the note and not that complainant's supervisor transferred the case file

to another examiner. The Commission has repeatedly found that remarks or

comments unaccompanied by a concrete agency action are not a direct and

personal deprivation sufficient to render an individual aggrieved for

the purposes of Title VII. See Backo v. United States Postal Service,

EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal

Service, EEOC Request No. 05940695 (February 9, 1995). Accordingly, the

Commission finds that the comments made on the note do not state a claim.

As to claim (2), complainant argues that the claim was based upon an

evaluation he received at the end of his PIP. Based upon review of the

complaint, we find that complainant clearly indicated that claim (2)

involved a �Written Warning of Unacceptable Performance.�<2> Nothing

on the complaint indicates that complainant intention was to include the

performance appraisal. Accordingly, we find that complainant failed to

raise the evaluation he received at the end of the PIP as part of his

formal complaint.

Based upon review of the record and complainant's appeal, the Commission

AFFIRMS the agency's dismissal of complainant's complaint.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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

August 29, 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 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.

2It also appears that the date listed on the complaint was July 15,

1999, which corresponds to the date complainant received the warning.