01A33896_r
03-19-2004
Jesus H. Trevino, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Jesus H. Trevino v. Department of Homeland Security
01A33896
March 19, 2004
.
Jesus H. Trevino,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A33896
Agency Nos. TD 03-2232 and DHS 03-0046
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 6, 2003, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of age when:
On March 28, 2002, the Assistant Port Director made statements related to
"older inspectors" as being less productive than younger inspectors;
Between January 2000 and July 2002, the Assistant Port Director did not
consult with older supervisors regarding personnel assignments;
Between January 2000 and July 2002, the Assistant Port Director did not
consult older supervisors in making staff changes; and
Between January 2000 and July 2002, the Assistant Port Director did
not consult older supervisors regarding job training opportunities
and assignments.
Initially, the agency processed complainant's complaint as a class
complaint. In a final decision dated May 6, 2003, the agency relates
that an Administrative Judge (AJ) issued a decision dated November 4,
2002, in which the AJ recommended that the class not be certified.
Thereafter, the agency fully implemented the AJ's decision and processed
complainant's claims as an individual complaint.<1> Subsequently, the
agency dismissed complainant's complaint for failure to state a claim,
pursuant to 29 C.F.R. � 1614.107(a)(1), finding that complainant failed
to show how the actions described in claims (1) through (4) affected a
term, condition, or privilege of his employment. The agency found that
complainant was not aggrieved by the alleged discriminatory conduct.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The Commission has consistently held that a stray remark or comment
unaccompanied by concrete action is not a direct and personal deprivation
sufficient to render an individual aggrieved for the purposes of
Title VII. Henry v. USPS, EEOC Request No. 05940695 (February 9, 1995).
We concur with the agency that the complaint fails to state a claim.
Nothing in the record indicates complainant received any discipline,
demotion, was personally denied any training or received an undesirable
performance appraisal as a result of the incidents described in claims
(2) - (4). Similarly, we find that the isolated remark described in
claim (1), even when combined with the remainder of the complaint, was
not sufficiently severe to state a claim of harassment. Accordingly,
we find the agency properly dismissed the complaint pursuant to 29
C.F.R. � 1614.107(a)(1) for failure to state a claim.
We therefore AFFIRM the agency's final decision.
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 19, 2004
__________________
Date
1The record shows that complainant did not
appeal the agency's decision regarding class certification and in the
instant appeal, complainant states the individual complainants never
requested their claims be processed as a class complaint. We therefore
make no finding regarding class certification.