01a05474
09-15-2000
Robert J. Kaufman v. Department of Commerce
01A05474
September 15, 2000
.
Robert J. Kaufman,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A05474
Agency No. 00-63-00732D
DECISION
The instant matter is being processed pursuant to a Memorandum of
Understanding (MOU) entered into by the agency, the Bureau of the Census,
and the United States Equal Employment Opportunity Commission.<1> The
MOU was entered into in order to process complaints arising from the
2000 Decennial Census more effectively and efficiently.
Pursuant to the MOU, individuals file their complaints directly with
the Commission. The Commission, through its Washington, D.C. Field
Office, then conducts an early assessment of complaints and neutral
evaluation of cases. The Washington, D.C. Field Office of the Commission
establishes a record of the complaint by obtaining an affidavit from the
complainant and by contacting an agency official to obtain the necessary
information on the complaint. Based on the record established by the
Washington, D.C. Field Office, the Washington, D.C. Field Office will:
(1) notify the agency that the individual has elected not to file a
formal complaint; (2) issue a decision dismissing the complaint and
notify the complainant of his or her right to appeal the decision to
the Office of Federal Operations; (3) conduct settlement negotiations;
or (4) notify the complainant that the complaint has been accepted and
forward the complaint to the agency for further investigation.
The Commission's Washington, D.C. Field Office dismissed the instant
complaint for failure to state a claim. In his complaint, complainant
argued that he was not hired as an Enumerator after going through training
for the position, and received no communication from the agency after
training. In its dismissal, the Field Office found that complainant
failed to articulate a discriminatory basis for his complaint. Further,
the Field Office noted that �complainant has not, by his own admission,
alleged discrimination against the [agency].�
On appeal, complainant argues that the Field Office's decision was based
on an uncorrected version of his affidavit. In the corrected version,
complainant contends that he alleged discrimination.
The record contains a copy of the uncorrected and corrected versions
of complainant's affidavits. The uncorrected version states, �I
do not believe I was discriminated against but I do believe that
it was outrageous the way I was treated. . . .� By contrast, the
corrected version states �I do not know what the discrimination stemmed
from. . . .� The record also contains complainant's formal complaint
and the Counselor's Report. On both documents, complainant responded
�don't know� when asked the basis of his complaint.
EEOC Regulations require the dismissal of complaints that fail to state
a claim. See 29 C.F.R. � 1614.107(a)(1). The Commission has jurisdiction
over complaints alleging violations of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq., the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq., or the Equal Pay Act of
1963, as amended, 29 U.S.C. � 206(d) et seq. See 29 C.F.R. � 1614.103.
To state a claim under these statutes, complainant must claim a present
harm to a term, condition, or privilege of employment inflicted on the
basis of race, color, religion, national origin, sex, age, disability,
or prior protected activity. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
In the present complaint, complainant failed to allege a basis for
his complaint. He repeatedly responded �don't know� to questions
concerning the basis of his complaint. Since the complaint did not
invoke any statute enforced by the Commission, it failed to state a
claim for which relief can be granted.
CONCLUSION
Accordingly, the dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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 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 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 15, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.