James B. Twisdale, Complainant,v.Paul H. O'Neill, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJun 20, 2001
01996474_r (E.E.O.C. Jun. 20, 2001)

01996474_r

06-20-2001

James B. Twisdale, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.


James B. Twisdale v. Department of the Treasury

01996474

June 20, 2001

.

James B. Twisdale,

Complainant,

v.

Paul H. O'Neill,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01996474

Agency No. 99-3191

DECISION

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

properly dismissed by the agency. The agency defined complainant's

complaint as claiming discrimination on the bases of race (Caucasian)

and in retaliation for prior EEO activity when:

(1) On December 6, 1998, the Disclosure Office was reassigned from

complainant's area of responsibility;

Since August 26, 1998, complainant has been denied opportunities to

act for the Division Chief in her absence;

On December 1, 1998, a meeting between complainant's attorney and

the District Director regarding settlement of earlier EEO complaints

was canceled;

On June 23, 1998, complainant's request to be reassigned as a Field

Branch Chief was denied;

Complainant was informed by a manager that complainant's Division Chief

intended to abolish complainant's position in September 1999;

Complainant was informed by the former District Quality Coordinator

that during an October 26, 1998 staff meeting, in the context of

acknowledging that complainant's request to be reassigned as a Field

Branch Chief was denied, the Division Chief stated, �Do you want him?;�

On February 22, 1999 and February 24, 1999, complainant's Division

Chief remarked to a manager that complainant �had difficulty getting

along with people;�

In September 1998 or October 1998, during a discussion regarding a

racial comment made by another employee, complainant's Division Chief

remarked that the other employee �must have felt comfortable in order

for her to say it;�

On an ongoing basis, the District Director blocked the resolution or

settlement of complainant's prior EEO complaints and failed to recuse

himself from the handling of complainant's complaints; and

On March 24, 1999, complainant was informed that he was the subject of

a referral to Inspection.

The Commission affirms the dismissal of the complaint pursuant to 29

C.F.R. �� 1614.107(a)(1), 1614.107(a)(3), and 1614.107(a)(8).

On October 2, 2000, complainant filed a civil action (titled �Amended

Complaint for Damages�) in the United States District Court for the

Southern District of Indiana. Four out of the ten claimed incidents

of discrimination detailed in complainant's EEO complaint, claims 1, 2,

4, and 10, are also claimed in the complaint that is pending in District

Court. EEOC Regulation 29 C.F.R. � 1614.409 provides that the filing

of a civil action shall terminate Commission processing of the appeal.

Therefore, the portion of the appeal concerning claims 1, 2, 4, and 10,

shall be dismissed.

Claims 3 and 9 were dismissed by the agency for failure to state a claim.

The Commission finds that claims 3 and 9 allege dissatisfaction with

the processing of previously filed complaints, and those claims are

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(8). Furthermore,

the agency is not obligated to settle any EEO complaint.

The Commission finds that claim 5, alleging that a proposal to take a

personnel action is discriminatory, was properly dismissed by the agency

pursuant to 29 C.F.R. � 1614.107(a)(5).

Claims 6, 7, and 8 describe remarks unaccompanied by any agency action.

Remarks or comments unaccompanied by a concrete agency action are not

a direct and personal deprivation sufficient to render an individual

aggrieved for the purposes of Title VII. Furthermore, claims 6, 7,

and 8 are insufficient to state a claim of harassment. Claims 6, 7,

and 8 were properly dismissed by the agency for failure to state a claim

pursuant to 29 C.F.R. � 1614.107(a)(1).

Complainant's appeal of claims 1, 2, 4, and 10 is DISMISSED. The agency's

final decision dismissing claims 3 and 5 - 9 is AFFIRMED for the reasons

set forth herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

June 20, 2001

__________________

Date