01997276_r
11-20-2001
Jimmy D. Lovato, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Jimmy D. Lovato v. Department of Health and Human Services
01997276
November 20, 2001
.
Jimmy D. Lovato,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01997276
Agency No. OSH00899
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated August 23, 1999, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Believing that he was the victim of discrimination based on national
origin and in reprisal for prior EEO activity, complainant contacted the
EEO office. Informal efforts to resolve his concerns were unsuccessful.
On April 14, 1999, complainant filed a formal complaint. Therein,
complainant claimed that he was discriminated against on October 8, 1998,
disparaging remarks about him were made by his former supervisor, an
agency regional manager at the Office of Civil Rights in Denver, Colorado,
in a Westword (Denver) Newspaper article, which damaged his reputation.
The newspaper article in question was captioned as an �up close and
personal� article, wherein complainant blamed a regional manager for
internal problems at the agency's Office of Civil Rights, while the
regional manager claimed that complainant is attempting to �settle old
scores.� The article quotes the regional manager as stating, among other
matters, that complainant had �encouraged people to file complaints;�
and that when complainant was disciplined, he �was so angry about that,
he never forgot it.�
On August 23, 1999, the agency issued a decision dismissing the
complaint for failure to state a claim because no adverse action was
taken against the complainant. The agency determined that complainant
did not provide any evidence to suggest that he suffered a personal
loss or harm regarding a term, condition, or privilege of his current
employment with a different agency. The record shows that complainant
left the agency in 1995 to accept a position with a different agency.
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).
Upon review, the Commission finds that the agency's decision to dismiss
the complaint for failure to state a claim was proper. no adverse action
was taken against the complainant based on his former supervisor's
comments in the newspaper article. Moreover, we find that the comments
by the former supervisor quoted in the newspaper article do not reflect
a loss or harm regarding a term, condition, or privilege of complainant's
employment. Accordingly, the agency's decision to dismiss the complaint
for failure to state a claim is proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
November 20, 2001
__________________
Date