Jose A. Gonzalez, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionApr 10, 2000
01986900 (E.E.O.C. Apr. 10, 2000)

01986900

04-10-2000

Jose A. Gonzalez, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Jose A. Gonzalez v. Department of the Treasury

01986900

April 10, 2000

Jose A. Gonzalez, )

Complainant, )

)

v. ) Appeal No. 01986900

Lawrence H. Summers, ) Agency No. 98-2221

Secretary, )

Department of the Treasury, )

Agency. )

____________________________________)

DECISION

On September 22, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by him on September

8, 1998, pertaining to his complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of

1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. <1> In his complaint,

complainant alleged that he was subjected to discrimination on the

bases of gender (male), age (DOB 6/5/54), and in reprisal for prior EEO

activity when:

On or about March 12, 1998, the Director referred to Internal Affairs

(IA) a Supervisory Customs Inspector's complaint that complainant was

soliciting negative comments/statements about her.

The agency dismissed complainant's complaint pursuant to EEOC Regulation

64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred

to as 29 C.F.R. � 1614.107(a)(1)), for failure to state a claim. The

agency stated that the referral of a complaint to Internal Affairs does

not constitute an injury sufficient to make complaint an aggrieved person.

The agency noted that Internal Affairs did not conduct an investigation

of complainant, nor was complainant criminally prosecuted. In addition,

the agency stated that complainant did not state a claim of harassment

since he failed to demonstrate that the agency's alleged actions were

sufficiently severe or pervasive so as to alter the conditions of his

employment.

On appeal, complainant states that the agency has used Internal Affairs

as a way of intimidating him and preventing him from carrying out his

job as a union steward and EEO Counselor. Complainant states that he has

been the subject of IA referrals or investigations at least nine times.

Thus, complainant states that the harm he has suffered is the agency's

attempted use of IA referrals/investigations to curtail complainant's

protected activity. In addition, complainant claims that he has stated a

hostile work environment harassment claim on the basis of retaliation.

Specifically, complainant claims that the referral to IA and the

circumstances under which it was made were severe and pervasive since

the attempt was to chill his attempts to represent workers with claims

against management.

The Commission has held that where a complainant has been referred to

Internal Affairs, and there has been no investigation and no criminal

prosecution, that the referral to IA alone did not constitute a denial of

some personal right or an imposition of a burden or obligation. Ricciardo

v. Department of the Treasury, EEOC No. 01966777 (February 5, 1998),

request for reconsideration denied, Request No. 05980416 (July 17, 1998).

The record in the present case reveals that no investigation was done,

nor was there any criminal prosecution, thus, we find that complainant

has failed to show that he was suffered a harm with regards to a term

or condition of his employment. While complainant alleges on appeal

that the identified action is part of an ongoing pattern of harassment.

We note, however, that the record in this case reflects that during

pre-complaint processing and in his formal complaint, complainant solely

addressed a single incident: a single referral to Internal Affairs.<2>

It is well-settled that, unless the conduct is very severe, a single

incident or a group of isolated incidents will not be regarded as

creating a discriminatory work environment. See James v. Department

of Health and Human Services, EEOC Request No. 05940327 (September 20,

1994). We find that complainant failed to allege a pattern of harassment

and the dismissal of complainant's complaint on the grounds of failure

to state a claim was proper and is AFFIRMED.

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 (S1199)

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:

April 10, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

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.

2In addition, we note that on appeal, complainant indicates that the

prior IA referrals were the subject of a prior case, Agency No. 97-2079.