01995469
11-19-1999
Richard N. Giacobbe, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Richard N. Giacobbe, )
Complainant, )
)
v. )
) Appeal No. 01995469
Janet Reno, ) Agency No. D-96-3394
Attorney General, )
Department of Justice, )
Agency. )
______________________________)
DECISION
On June 25, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD), dated May 17, 1999, dismissing his
complaint for failure to state a claim.<1> The Commission accepts the
appeal in accordance with EEOC Order No. 960, as amended.
Complainant contacted the EEO office regarding claims of discrimination
based on race (white) and his son's mental and physical disabilities.
Informal efforts to resolve complainant's concerns were unsuccessful.
Accordingly, on November 12, 1998, complainant filed a formal complaint.
The agency defined the claims as follows:
Complainant was the subject of an Office of Professional Responsibility
(OPR) investigation for voucher fraud; however, at the beginning of
the investigation, the OPR investigators advised complainant of his
Miranda warnings first and his administrative rights secondly;
The OPR Investigator made many comments to people during the course of
the investigation regarding complainant's son who is severely mentally
and physically disabled; and
Complainant asked to use DEA's Employee Assistance Program (EAP), and
when complainant asked for his wife to attend, she was only offered a
male doctor.
The agency issued a FAD dismissing complainant's complaint for failure
to state a claim.
EEOC Regulation 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified at,
and herein cited as, 29 C.F.R. �1614.107(a)(1)) provides, in relevant
part, that an agency shall dismiss a complaint, or portion thereof,
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; �1614.106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
The Commission finds that the agency properly dismissed complainant's
complaint for failure to state a claim. By receiving his rights in a
particular order or having his wife offered a male doctor, complainant
has not alleged a harm regarding a term, condition or privilege of
his employment. Moreover, comments made about complainant's son do
not render complainant an �aggrieved employee.� 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. U.S. Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry
v. U.S. Postal Service, EEOC Request No. 05940695 (February 9, 1995).
Accordingly, the agency's decision dismissing the complaint for failure
to state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
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:
November 19, 1999
__________________________________
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:
______________________
__________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect which 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.