01a45676
02-10-2005
James P. Shoup, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
James P. Shoup v. Department of the Treasury
01A45676
February 10, 2005
.
James P. Shoup,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A45676
Agency No. 04-2336
DECISION
On August 25, 2004, the complainant timely appealed a final agency
decision (FAD) dated July 19, 2004, and received by him on August 5,
2004, which dismissed his complaint for failure to state a claim,
failure to cooperate, and untimely EEO counselor contact. 29 C.F.R. �
1614.107(a)(1), (2) and (7). On appeal, the complainant makes no comment.
In his complaint, the complainant claimed that he was subjected to
discrimination on the basis of sex (male) when:
In an anonymous letter his ex-wife was alleged to have had an
inappropriate relationship with the former Special Agent in Charge (SAC)
(a male manager);
On November 20, 2003, he was denied permission to engage in outside
employment;
Agency personnel made hostile and humiliating statements regarding his
ex-wife;
Although the former SAC was transferred out of Minnesota on September 10,
2001, he received no punishment for his alleged inappropriate relationship
with his ex-wife;
In a July 8, 2003 e-mail, his current SAC expressed doubts about the
complainant's sincerity in wanting to enter into management;
In 2003, he was not allowed to attend an �OCDETF� Conference;
He was not allowed to attend either the IOMGIA conference that was held
September 21-24, 2003, or the OCDEFTF Conference that was held on June
10-12, 2003;
In an attempt to resolve his prior EEO complaint, the agency offered to
relocate him;
On July 8, 2003, the current SAC denied his July 7, 2003 request that
he and his ex-wife not be assigned to work together, and
He received no recognition for an award he received from the Hennepin
County Sheriff's office in November 2003, as a result of working on a
high profile case.
The FAD dismissed claims 2, 4, 5, 7, 8, 10 and 11 for failure to
timely seek EEO counseling. It reasoned that the complainant sought EEO
counseling on March 18, 2004, and these claims occurred longer ago than
the 45 day time limitation to seek counseling on them.
The FAD dismissed claims 1, 3 and 6 for failure to cooperate. In a
previous letter, the agency asked the complainant to give the dates the
events in claims 1 and 3 occurred, and generally asked him to provide the
dates he believed his wife received preferential treatment. The letter
warned the complainant that if he did not do so with 15 days of receipt
of the request, his complaint may be dismissed for failure to cooperate.
While the complainant responded, he did not provide specific dates, and
stated claim 3 was ongoing. In dismissing claims 1, 3 and 6, the FAD
stated the complainant provided insufficient information to adjudicate
these claims.
The FAD dismissed claim 9 for failure to state a claim. It reasoned
the complainant was not aggrieved.
The complainant contends that the former SAC and his ex-wife (before the
complainant's divorce) had an affair. According to the counselor's report
for the complainant's prior complaint (03-4087), the letter regarded
a hostile environment caused by the personal relationship between the
complainant's estranged wife and the SAC. The complainant believes the
anonymous letter referred to in claim 1 contributed to the breakdown of
his marriage because an investigator advised his ex-wife not to confide
its contents and she believed the complainant wrote the letter.
In Shoup v. Department of the Treasury, EEOC Appeal No. 01A32721 (July 9,
2003), the Commission affirmed the agency's dismissal of the complainant's
prior complaint. The complainant did not ask for reconsideration of
the decision, and it became final. The decision did not discuss or
rule on the claim of the anonymous letter. However, it did address
the complainant's claims that due to his then wife's relationship with
the then SAC, she received special assignments, gifts, and preferential
treatment, and although the complainant complained to management, the
affair between the SAC and the complainant's estranged wife and rumors
thereof continued, and the above actions caused him sorrow, humiliation,
and emotional turmoil.
In Shoup, EEOC Appeal No. 01A32721, the Commission ruled that a consensual
sexual relationship between a spouse of a federal employee and a third
party, where all three individuals are employed by the same agency,
does not constitute sexual harassment. It explained that the motives
of the complainant's estranged wife and the SAC were not related
to the complainant's membership in a protected group. It further
explained that isolated instances of preferential treatment based on a
consensual romantic relationship may be unfair, but does not constitute
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. because both males and
females are equally disadvantaged for reasons other than their gender.
Claim 1 does not state a claim. The anonymous letter allegedly stated
the complainant's estranged wife was having an inappropriate relationship
with the SAC. The complainant himself believed this. He claims that he
was harmed because an investigator told his ex-wife not to confide the
contents of the letter. This does not involve the terms and conditions
of the complainant's employment and does not state a claim. Accordingly,
we need not rule on whether this claim was properly dismissed for failure
to cooperate. Claim 4 does not state a claim both because the romantic
relationship between the complainant's ex-wife and former SAC does not
constitute sexual harassment against the complainant and whether another
employee is punished does not affect the terms and conditions of the
complainant's employment. To the extent that claim 6 regards favoritism
arising from the complainant's ex-wife's relationship with the SAC,
this matter does not state a claim. Claim 10 does not state a claim
because, as stated before, the complainant's ex-wife's relationship with
the former SAC does not constitute harassment against the complainant,
and hence being asked to work together at an awards ceremony does not
state a claim. As claims 4 and 10 do not state a claim, we need not
rule on their timeliness.
Claim 9 does not state a claim. The Commission has held that settlement
negotiations are to be treated as confidential and privileged in order
to facilitate candid interchange to settle disputes informally. To
allow a new complaint based on a settlement offer would defeat this
purpose. Smeltzer v. United States Postal Service, EEOC Request
No. 05960861 (February 20, 1998).
In claim 3, the complainant contended he suffered discrimination when
he learned a co-worker friend of his ex-wife said he was a �jerk.�
The complainant also contended that when his ex-wife entered a court
or hearing room for one of his cases, the complainant's supervisor said
something to the effect of �here comes the days of our lives,� referring
to the soap opera drama between the complainant and his ex-wife.
The complainant stated other remarks are being made, but does not
specify them. Remarks or comments unaccompanied by a concrete agency
action are not a direct and personal deprivation to render an individual
aggrieved for purposes of Title VII. Backo v. United States Postal
Service, EEOC Request No. 05960227 (June 10, 1996). Further, we do
not find the comments to be sufficiently severe or pervasive to state a
claim of discriminatory harassment. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). As claim 3 does not state
a claim, we need not determine whether it was properly dismissed for
failure to cooperate.
A reading of the record shows claim 6 also regards the complainant being
rotated out of his assignment of working with the Drug Task Force.
The complainant was taken off the Drug Task Force in 2003 or before.
The remaining claims occurred at various points in 2003. The complainant
did not seek EEO counseling until March 18, 2004. He stated that he
delayed seeking EEO counseling because he was hoping to save his marriage
and waited until his divorce became final in March 2004. He also stated
that he had psychological problems which caused delay. The record does
not show, however, that he was incapacitated. The complainant has
given inadequate justification for extending the time limit to seek EEO
counseling. We affirm the agency's dismissal of claims 2, 5, 7, 8, and
11 for failure to timely seek EEO counseling. As the complainant failed
to timely seek EEO counseling on claim 6, we need not decide whether
the agency properly dismissed this claim for failure to cooperate.
The agency's decision to dismiss the 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
February 10, 2005
__________________
Date