Walter B. Biondi, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionNov 23, 1999
01986271 (E.E.O.C. Nov. 23, 1999)

01986271

11-23-1999

Walter B. Biondi, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Walter B. Biondi, )

Complainant, )

)

v. ) Appeal No. 01986271

) Agency No. 98-3190

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

____________________________________)

DECISION

Complainant filed the instant appeal from the agency's July 29, 1998

decision stating that the agency was dismissing complainant's complaint

(defined as containing 7 claims) as moot.<1> On appeal, the agency

argues that it dismissed claim 7 for failure to state a claim rather

than mootness. On appeal, the agency also argues that claims 1 - 6 are

properly dismissed for failure to state a claim.

Complainant's complaint is essentially a complaint claiming that

complainant was subjected to a hostile work environment. In the complaint

complainant claimed (among other similar incidents): complainant was

advised to file a workers' compensation claim; complainant had not heard

from the Acting Commissioner for a period of 6 months; complainant did not

receive any telephone calls or correspondence from his supervisor after

filing his previous EEO complaint in December 1997, until he received a

letter dated March 24, 1998 which had tone of vindictiveness; by letter

dated April 17, 1998 complainant's supervisor requested additional

doctor's letters on a monthly basis; complainant did not receive

congratulations from his first and second line supervisor for receiving

an award; after speaking with the Special Assistant as requested by the

Acting Commissioner complainant has not heard back from her; and the

Assistant Commissioner persuaded the Acting Commissioner not to resolve

complainant's prior EEO complaint.

The Commission finds that the complaint as a whole is properly dismissed

pursuant to the regulation set forth at 64 Fed. Reg. 37,644, 37656

(to be codified as and hereinafter cited as 29 C.F.R. �1614.107(a)(1))

for failure to state a claim. The Commission finds that when all the

incidents in the complaint are considered together the complaint is

insufficient to state a claim of harassment. See Cobb v. Department of

the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Furthermore,

none of the incidents state an independent claim of discrimination

because none of the incidents, independent of the other incidents,

rendered appellant aggrieved. Because of our disposition there is no

need to address whether the complaint is moot.

The agency's decision dismissing the complaint 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. 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 (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 23, 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:

_________________________ _________________________

Date Equal Employment Assistant1On 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.