01985855
03-21-2000
Larry Dow, Jr., Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Larry Dow, Jr. v. Department of the Treasury
01985855
March 21, 2000
Larry Dow, Jr., )
Complainant, )
)
v. ) Appeal No. 01985855
Lawrence H. Summers, ) Agency No. 98-4172
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
On July 18, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on June 17, 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 Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq. <1> In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of sex (male) and physical disability (veteran's preference) when:
Agency officials denied complainant equal employment processing;
specifically, the agency officials were negligent, expressed defamatory
remarks about complainant's character, and created a hostile work
environment on January 8, 1998.
The agency dismissed complainant's complaint on the grounds that he
failed to state a claim. Specifically, the agency stated that since
complainant declined to accept an offer of employment with the agency,
he was not an applicant as of the date of the alleged incident.
The record shows that complainant applied for a TR-083 Police Officer
position, and was determined to be eligible for the position on June
6, 1997. The agency conducted a pre-employment security clearance
and reference check. While conducting the reference check, the agency
contacted complainant's former supervisor who revealed that complainant
was involved in an incident with a female police officer which led
the female police officer to obtain an order of protection against
complainant and file an EEO complaint of harassment against complainant.
Based on this information, the agency determined that complainant was
unsuitable for the Police Officer position and on September 24, 1997, the
agency requested authorization from the Office of Personnel Management
(OPM) to pass over complainant as a preference eligible, and select a
non-preference eligible. On November 6, 1997, OPM denied the agency's
request based on insufficient documentation to sustain the request.
By letter dated December 4, 1997, the agency tentatively selected
complainant for the Police Officer position, and requested that he
complete an acceptance/declination form to indicate his decision regarding
the selection. On January 7, 1998, complainant returned the acceptance
form, and changed the stated conditions of employment. On February 2,
1998, during a conversation with the agency's Chief, Employment and
Employee Benefits Branch, complainant declined the position based on
the conduct of the agency officials and what complainant believed to be
a hostile work environment.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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).
We reject the agency's argument that complainant was not an applicant for
employment on the date of the alleged incident. We note that the alleged
discriminatory incident occurred during a pre-employment investigation,
and find complainant clearly was applying for employment with the agency
at that time.
We note, however, that complainant claims he suffered discrimination
as a result of alleged defamatory remarks and comments made by agency
officials. 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). Therefore, we find that
complainant has not demonstrated that he suffered a harm or loss to a
term, condition, or privilege of employment.
Accordingly, the agency's decision to dismiss complainant's complaint
on the grounds of failure to state a claim is AFFIRMED for the reasons
set forth herein.
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).
COMPLAINANT'S 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:
March 21, 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
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.