01996474_r
06-20-2001
James B. Twisdale, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
James B. Twisdale v. Department of the Treasury
01996474
June 20, 2001
.
James B. Twisdale,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01996474
Agency No. 99-3191
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed by the agency. The agency defined complainant's
complaint as claiming discrimination on the bases of race (Caucasian)
and in retaliation for prior EEO activity when:
(1) On December 6, 1998, the Disclosure Office was reassigned from
complainant's area of responsibility;
Since August 26, 1998, complainant has been denied opportunities to
act for the Division Chief in her absence;
On December 1, 1998, a meeting between complainant's attorney and
the District Director regarding settlement of earlier EEO complaints
was canceled;
On June 23, 1998, complainant's request to be reassigned as a Field
Branch Chief was denied;
Complainant was informed by a manager that complainant's Division Chief
intended to abolish complainant's position in September 1999;
Complainant was informed by the former District Quality Coordinator
that during an October 26, 1998 staff meeting, in the context of
acknowledging that complainant's request to be reassigned as a Field
Branch Chief was denied, the Division Chief stated, �Do you want him?;�
On February 22, 1999 and February 24, 1999, complainant's Division
Chief remarked to a manager that complainant �had difficulty getting
along with people;�
In September 1998 or October 1998, during a discussion regarding a
racial comment made by another employee, complainant's Division Chief
remarked that the other employee �must have felt comfortable in order
for her to say it;�
On an ongoing basis, the District Director blocked the resolution or
settlement of complainant's prior EEO complaints and failed to recuse
himself from the handling of complainant's complaints; and
On March 24, 1999, complainant was informed that he was the subject of
a referral to Inspection.
The Commission affirms the dismissal of the complaint pursuant to 29
C.F.R. �� 1614.107(a)(1), 1614.107(a)(3), and 1614.107(a)(8).
On October 2, 2000, complainant filed a civil action (titled �Amended
Complaint for Damages�) in the United States District Court for the
Southern District of Indiana. Four out of the ten claimed incidents
of discrimination detailed in complainant's EEO complaint, claims 1, 2,
4, and 10, are also claimed in the complaint that is pending in District
Court. EEOC Regulation 29 C.F.R. � 1614.409 provides that the filing
of a civil action shall terminate Commission processing of the appeal.
Therefore, the portion of the appeal concerning claims 1, 2, 4, and 10,
shall be dismissed.
Claims 3 and 9 were dismissed by the agency for failure to state a claim.
The Commission finds that claims 3 and 9 allege dissatisfaction with
the processing of previously filed complaints, and those claims are
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(8). Furthermore,
the agency is not obligated to settle any EEO complaint.
The Commission finds that claim 5, alleging that a proposal to take a
personnel action is discriminatory, was properly dismissed by the agency
pursuant to 29 C.F.R. � 1614.107(a)(5).
Claims 6, 7, and 8 describe remarks unaccompanied by any agency action.
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. Furthermore, claims 6, 7,
and 8 are insufficient to state a claim of harassment. Claims 6, 7,
and 8 were properly dismissed by the agency for failure to state a claim
pursuant to 29 C.F.R. � 1614.107(a)(1).
Complainant's appeal of claims 1, 2, 4, and 10 is DISMISSED. The agency's
final decision dismissing claims 3 and 5 - 9 is AFFIRMED for the reasons
set forth herein.
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
June 20, 2001
__________________
Date