01993584_r
05-16-2001
Jose A. Gonzalez, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Jose A. Gonzalez v. Department of the Treasury
01993584
May 16, 2001
.
Jose A. Gonzalez,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01993584
Agency No. 99-2074
DECISION
Upon review, we find that the complaint was properly dismissed
on the grounds of failure to state a claim pursuant to 29
C.F.R. �1614.107(a)(1), and on the grounds of untimely EEO contact
pursuant to 29 C.F.R. �1614.107(a)(2). Complainant claimed that he was
discriminated against on the bases of his national origin (Hispanic),
age (44), and in reprisal for his previous EEO activity under Title VII
and the ADEA when:
1. On April 16, 1998, he was relocated to an office that was not
acceptable to him.
2. On August 23, 1998, he was subjected to a �drive by� of his residence
by an Internal Affairs Special Agent.
3. (a) In mid-July 1998, the Acting EEO Officer initially indicated
that she would not grant him a third counseling extension for an informal
complaint of an individual represented by complainant, but later granted
the extension.
(b) On or about August 7, 1998, part of an EEO Counselor's cc:
mail was blocked out by local area network administrators.
(c) On August 23, 1998, the Acting EEO Officer bypassed him and
attempted an informal resolution with an individual represented
by complainant.
(d) On or about September 9 and 10, 1998, the Acting EEO Officer
refused to allow him, per direction of the Assistant Chief
Counsel, to view the local CMC folder and official personnel
folder of a former employee without a Freedom of Information
Act request from that former employee.
Claims 2 and 3(a), (b), (c), and (d) were dismissed on the grounds
of failure to state a claim. Complainant has not established that
he suffered personal harm to a term, condition, or privilege of his
employment as a result of the alleged incident set forth in claim 2.
We find that complainant lacks standing to raise claims 3(a), (b), (c),
and (d). The individuals represented by complainant are the parties who
may have suffered harm and they have standing to raise these matters.
Complainant, as their representative, did not suffer harm to a term,
condition, or privilege of his employment. Further, we find that these
incidents and the incident referenced in claim 2 are not sufficiently
severe or pervasive to constitute harassment.
With regard to claim 1, we note that complainant claimed that he
was discriminated against when on April 16, 1998, he was relocated
to office space that was not acceptable to him. Complainant did not
initiate contact with an EEO Counselor until September 11, 1998, after
the expiration of the 45-day limitation period. Complainant has not
submitted sufficient argument or evidence to justify an extension of
the 45-day limitation period for contacting an EEO Counselor.
Accordingly, the agency decision dismissing claim 2 and claims 3(a),
(b), (c), and (d) of the complaint on the grounds of failure to state a
claim was proper and is hereby AFFIRMED. The agency decision dismissing
claim 1 on the grounds of untimely EEO contact was proper and is hereby
AFFIRMED.<1>
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
May 16, 2001
__________________
Date
1In light of our affirmance of the agency's dismissal of claim 3(a)
on the grounds of failure to state a claim, we need not address the
agency's alternative grounds for dismissal.