05970287
10-08-1998
Joe W. Boren, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Joe W. Boren v. Department of the Treasury
05970287
October 8, 1998
Joe W. Boren, )
Appellant, )
) Request No. 05970287
v. ) Appeal No. 01961714
) Agency No. 96-2008
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
GRANT OF REQUEST FOR RECONSIDERATION
On December 19, 1996, the Department of the Treasury (hereinafter
referred to as the agency) timely initiated a request to the Equal
Employment Opportunity Commission (the Commission) to reconsider the
decision in Joe W. Boren v. Robert E. Rubin, Secretary, Department of
the Treasury, EEOC Appeal No. 01961714 (November 15, 1996). The agency
received the decision on November 20, 1996. EEOC regulations provide
that the Commissioners may, in their discretion, reconsider any previous
decision. 29 C.F.R. �1614.407(a). A party requesting reconsideration
must submit written argument or evidence which tends to establish one or
more of the following criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation or material fact, or misapplication of
established policy, 29 C.F.R. �1614.407(c)(2); the decision is of such
exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons that follow, the agency's
request is granted.
The issue presented is whether the previous decision properly determined
that appellant's complaint stated a claim.
Appellant filed his formal complaint on September 29, 1995, alleging
discrimination based on disability, race (white), and reprisal, when
"management attempted to meet without him being present to negotiate
'call in' procedures." (Agency FAD, p. 1). Appellant served as the
union president and alleged that the agency's action was done to harass
and intimidate him. The previous decision found that the agency's
dismissal of the complaint for failure to state a claim was not proper.
In its request for reconsideration (RTR), the agency contends that
appellant's complaint failed to state a claim and that it was properly
dismissed. The agency noted that appellant failed to reschedule the
meeting when he discovered he had a conflict and that, in any event,
no business took place at the meeting.
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal
of a complaint which fails to state a claim within the meaning of 29
C.F.R. �1614.103. To establish that he is an "aggrieved employee" within
the context of 29 C.F.R. �1614.103, appellant must allege, first of all,
that he has been injured in fact. Hackett v. McGuire Bros., 445 F.2d 447
(3rd Cir. 1971). Specifically, appellant must allege some direct harm
which affects a term, condition, or privilege of employment. See Stup
v. USPS, EEOC Request No. 05960746 (March 5, 1998).
In the case at hand, the Commission agrees with the agency that there
is no evidence that appellant suffered any personal loss or harm that
affected a term or condition of his employment as a result of the actions
complained of. Therefore, we find that the agency properly dismissed
appellant's complaint pursuant to 29 C.F.R. �1614.107(a). Henry v. USPS,
EEOC Request No. 05940695 (February 9, 1995). Further, we find that
the event as alleged herein was insufficient, without more, to state a
claim of harassment or hostile environment. See Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997).
For the above reasons, we find that the agency's request meets the
regulatory criteria of 29 C.F.R. �1614.407(c). Accordingly, the
Commission grants the agency's request to reconsider the previous
decision. Upon reconsideration, the Commission vacates the previous
decision and affirms the agency's decision dismissing appellant's
complaint. Accordingly, the agency's decision to dismiss appellant's
complaint for failure to state a claim was proper and is AFFIRMED.
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request meets the criteria of 29 C.F.R. �1614.407(c). It is therefore the
decision of the Commission to grant the agency's request. The decision
in EEOC Appeal No. 01961714 (November 15, 1996) is VACATED, and the final
agency decision is AFFIRMED. There is no further right of appeal on a
request for reconsideration.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
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.
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:
OCT 8, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat