Charles R. Estudillo, Complainant,v.Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionMar 20, 2002
01A14876_r (E.E.O.C. Mar. 20, 2002)

01A14876_r

03-20-2002

Charles R. Estudillo, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.


Charles R. Estudillo v. Social Security Administration

01A14876

March 20, 2002

.

Charles R. Estudillo,

Complainant,

v.

Jo Anne B. Barnhart,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 01A14876

Agency No. 01-0379-SSA

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to

state a claim. In a complaint dated June 4, 2001, complainant alleged

that he was subjected to discrimination on the bases of sex (male)

and reprisal for prior EEO activity when he was sexually harassed from

November 1995 through March 21, 2001 by the president of his local union.

In its final decision dated June 29, 2001, the agency dismissed the

complaint finding that both complainant and the alleged discriminating

official were full-time union representatives at the time of the alleged

harassment, and therefore not covered by EEOC federal sector regulations

29 C.F.R. Part 1614.

The Commission finds that the complaint fails to state a claim under the

EEOC regulations because complainant failed to allege facts sufficient

to show that he suffered harm or loss with respect to a term, condition,

or privilege of employment for which there is a remedy. The Commission

finds that complainant's claim regarding the spreading of malicious

rumors and vague sexual innuendo is neither sufficiently severe nor

pervasive to state a claim of harassment. Accordingly, the agency's

final decision dismissing complainant's complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

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

March 20, 2002

__________________

Date