Nelson Del Valle, Complainant,v.John W. Snow, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionDec 10, 2003
01A32446_r (E.E.O.C. Dec. 10, 2003)

01A32446_r

12-10-2003

Nelson Del Valle, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.


Nelson Del Valle v. Department of the Treasury

01A32446

December 10, 2003

.

Nelson Del Valle,

Complainant,

v.

John W. Snow,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01A32446

Agency No. 03-4107

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated March 5, 2003, dismissing his complaint of unlawful

employment discrimination. In his complaint, complainant alleged that he

was subjected to discrimination on the bases of race (Hispanic) and sex

(male) when he was subjected to a hostile working environment when:

1. In 1993, after a White female employee (employee A) was allowed

to use profanity towards complainant, the agency issued complainant a

letter of reprimand based upon the employee's allegation that complainant

threatened her.

2. In 1994, the agency surreptitiously and improperly accessed and

examined complainant's personal income tax return.

3. In 1999, complainant received a telephone call from employee A and

after complainant was unable to answer her question, the employee hung

up in a loud and violent manner.

4. In late 1999, employee A stated in a loud voice a few feet behind

complainant that "some minorities like to see themselves as victims."

5. On January 2, 2003, while complainant was using an office group

computer, employee A approached complainant and asked, "How long are you

going to be there?" (or words to that effect) in a rude and intimidating

manner.

The agency dismissed the claims on numerous grounds.

Claim 1

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of

discrimination to be brought to the attention of the EEO Counselor within

forty-five (45) days of the date of the claimed discriminatory matter,

or, in the case of a personnel action, within forty-five (45) days of

the effective date of the action. The Commission's regulations, however,

provide that the time limit will be extended when the complainant shows

that he or she was not notified of the time limits and was not otherwise

aware of them, that he or she did not know and reasonably should not

have known that the discriminatory matter or personnel action occurred,

that despite due diligence he or she was prevented by circumstances

beyond his or her control from contacting the counselor within the time

limits, or for other reasons considered sufficient by the agency or the

Commission. See 29 C.F.R. � 1614.105(a)(2).

The record discloses that the alleged discriminatory event in claim 1

occurred in 1993, but complainant did not initiate contact with an EEO

Counselor until January 14, 2003, which is beyond the forty-five (45) day

limitation period. We concur with the agency and find that complainant

should have reasonably suspected discrimination by 1993, the date that

the agency issued complainant a letter of reprimand based upon employee

A's allegation that complainant threatened her, which was more than

forty-five (45) days before her initial contact with an EEO Counselor.

Claims 2 through 5

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).

We concur with the agency and find that complainant is not aggrieved as a

result of the acts alleged in claims 2 through 5. Nothing in the record

indicates that complainant suffered any harm or loss with respect to a

term, condition, or privilege of employment for which there is a remedy.

See Diaz v. Department of the Air Force, EEOC Request No. 05931049

(April 21, 1994). Moreover, we do not find that complainant's complaint

is sufficiently severe so as to state a claim of harassment.

Accordingly, the agency's final decision dismissing 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

December 10, 2003

__________________

Date