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.