01995988
07-20-2000
Nelson Abrahante, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury Agency.
Nelson Abrahante v. Department of the Treasury
01995988
July 20, 2000
Nelson Abrahante, )
Complainant, )
)
v. ) Appeal No. 01995988
) Agency No. 993136
Lawrence H. Summers, )
Secretary, )
Department of the Treasury )
Agency. )
____________________________________)
DECISION
On July 22, 1999, complainant filed a timely appeal from a June 18,
1999 final agency decision (FAD), regarding 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.<1> The Commission
accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
On December 3, 1999, complainant contacted the EEO office claiming that
he was subjected to discrimination based on race and national origin and
retaliation when on October 13, 1998 management notified complainant in
a memorandum that he had sixty days to improve his job performance to a
fully successful level to avoid being removed from a flexiplace program.
Informal efforts to resolve complainant's concerns were unsuccessful.
On March 25, 1999, complainant filed a formal complaint.
The agency issued a FAD, dated June 18, 1999, dismissing the complaint for
claiming that a proposed agency action was discriminatory. The agency
further determined that the matter raised in the instant complaint was
not part of a continuing violation.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(5)) provides,
in part, that the agency shall dismiss a complaint that alleges that a
proposal to take a personnel action, or other preliminary step to taking
a personnel action, is discriminatory.
The Commission has held that proposed actions do not create a
direct and personal deprivation which would make the complainant an
�aggrieved� employee within the meaning of EEOC Regulations. See Charles
v. Department of the Treasury, EEOC Request No. 05910190 (February 25,
1991); Lewis v. Department of the Interior, EEOC Request No. 05900095
(February 6, 1990). The Commission has also held that if a proposed
action is purportedly combined with other acts of harassment to form
an alleged pattern of harassment, the agency may not properly dismiss
it as a propsed action. See Suttles v. USPS, EEOC Request No. 05970496
(April 8, 1999). In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993), the Supreme Court affirmed the holding of Meritor Savings Bank
v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if
it is sufficiently severe or pervasive to alter the conditions of the
complainant's employment.
On appeal, the complainant claims he experienced harassment,
discrimination, and unfair treatment, but does not indicate how
this proposal has resulted in a hostile work environment or racial
discrimination. When viewing the matters at issue in the light most
favorable to complainant, the Commission determines that the incident that
is the subject of the instant complaint, considered with the generalized
claim of harassment, is not sufficiently severe or pervasive to alter
the condition of complainant's employment. Accordingly, the agency's
final decision dismissing complainant's complaint is AFFIRMED.<2>
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 (S0400)
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:
July 20, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2 Regarding the agency's continuing violation analysis, the Commission
has said that the continuing violation doctrine is a theory used by
a complainant when the timeliness of an EEO complaint is in question,
i.e., when at least one, but not all, of a series of claims occurred
within the limitation period preceding the initial EEO Counselor contact.
See United Air Lines v. Evans, 431 U.S. 553 (1977); Rebo v. Department of
the Air Force, EEOC Request No. 05900290 (May 10, 1990). The continuing
violation doctrine is not, however, relevant to the legal issue of
whether complainant claimed that a proposed action is discriminatory.
See Meros v. Department of Commerce, EEOC Request No. 05930760 (September
23, 1993).