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.