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.