05970694
02-26-1999
Luther G. Gold, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Internal Revenue Service, Agency.
Luther G. Gold v. Department of the Treasury
05970694
February 26, 1999
Luther G. Gold, )
Appellant, )
)
v. ) Request No. 05970694
) Appeal No. 01964847
Robert E. Rubin, ) Agency No. 96-4126
Secretary, )
Department of the Treasury, )
Internal Revenue Service, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On April 11, 1997, appellant timely initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in Luther
G. Gold v. Robert E. Rubin, Secretary, Department of the Treasury,
EEOC Appeal No. 01964847 (March 10, 1997), which he received on
March 22, 1997. EEOC Regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or
more of the following three criteria: new and material evidence is
available that was not readily available when the previous decision
was issued, 29 C.F.R. �1614.407(c)(1); the previous decision involved
an erroneous interpretation of law, regulation or material fact, or
misapplication of established policy, 29 C.F.R. �1614.407(c)(2); and the
previous decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
below, the Commission denies appellant's request.
Appellant filed Complaint No 95-4164 in May 1995, against the agency's
Kansas City Service Center.<1> The investigation was completed, and
the parties were notified that they would be given the opportunity to
review the investigative file and submit comments thereon. A notice
letter dated October 24, 1995, was sent from the Regional Complaints
Center Director to the EEO Officer at the Kansas City Service Center and
to appellant's representative. In response to this letter, the Compliance
Division Chief for the Kansas City Service Center submitted a detailed,
5-page memorandum dated November 13, 1995, in which he made extensive
comments on the investigative file. This memorandum was made a part
of the investigative record. There are no indications that appellant
submitted comments in response to the October 24, 1994 notice.
Appellant filed the instant complaint when he learned that the Division
Chief's memorandum had been incorporated into the investigative file.
He alleged that the Division Chief retaliated against him for having
filed Complaint No. 95-4164 by seeking to bring up "negative comments and
undocumented statements" concerning his past employment history with the
agency. The agency dismissed the complaint for failure to state a claim,
and the previous decision summarily affirmed. The agency noted in its
dismissal letter that appellant failed to show that he suffered any
harm or loss affecting a term, condition, or privilege of employment.
In his request for reconsideration, and in a supplemental statement
from his representative, appellant maintains that he was harmed by the
inclusion of the Division Chief's memorandum in the investigative file.
Allegations concerning statements made by agency employees in the course
of the processing of an administrative EEO complaint do not state a claim.
Jones v. United States Postal Service, EEOC Request No. 05970676 (August
7, 1997). The memorandum in question was prepared and submitted in
connection with a routine review of the file prior to issuance of
notice of the right to request a hearing. Therefore, to the extent
that appellant alleges harm in connection with the inclusion of the
Division Chief's memorandum in the case file, he fails to state a claim.
Consequently, the agency acted properly in dismissing this complaint.
After a review of appellant's request for reconsideration, the
agency's response, the previous decision, and the entire record, the
Commission finds that appellant's request does not meet the criteria
of 29 C.F.R. �1614.407(c), and it is the decision of the Commission to
deny appellant's request. The decision of the Commission in Appeal
No. 01964847 remains the Commission's final decision in this matter.
There is no further right of administrative appeal from a decision of
the Commission on a request for reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Feb 26, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 See Luther G. Gold v. Department of the Treasury, EEOC Request
No. 05990017 (January 19, 1999).