01A30439_r
08-21-2003
Rick S. Benavidez, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Rick S. Benavidez v. Department of the Treasury
01A30439
August 21, 2003
.
Rick S. Benavidez,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A30439
Agency No. 02-4221
DECISION
On July 5, 2002, complainant claimed that he was discriminated against
on the bases of his race (Hispanic), age (44), and in reprisal for
his previous EEO activity under Title VII and the Age Discrimination
in Employment Act. The agency defined the complaint as alleging that
complainant was discriminated against when: (1) on March 14, 2002, he was
notified that he would be terminated from his position effective May 17,
2002, due to a reduction in force; (2) he was placed on administrative
leave; and (3) he was reassigned from the Midwest Region's Lubbock,
Texas duty station to the West Region's Albuquerque, New Mexico duty
station after the reduction in force notice was rescinded.
Complainant stated that he suffered financial losses because he withdrew
$80,000 from his retirement account to pay off outstanding bills since he
expected to lose his income. According to complainant, this caused him
to pay a higher rate of income taxes and he lost the interest that would
have accrued on the withdrawn amount. Complainant further stated that
the agency's actions harmed him physically and mentally as he suffered
depression and a loss of health, and the agency's actions also resulted
in damage to his professional standing, character, and reputation.
By agency decision dated September 18, 2002, the agency dismissed the
complaint pursuant to 29 C.F.R. �1614.107(a)(1), on the grounds of
failure to state a claim. The agency determined that complainant was
not harmed by the reduction in force since it was rescinded before it
became effective. With regard to complainant's reassignment from the
Midwest Region duty station of Lubbock, Texas to the West Region duty
station of Albuquerque, New Mexico, the agency determined that complainant
was not harmed with respect to a term, condition, or privilege of his
employment since he was not required to move his residence and he did
not incur any expenses.
As for complainant's placement on administrative leave, the agency
determined that complainant was not harmed as he received full pay and
benefits while he was on administrative leave. Additionally, the agency
determined that complainant's withdrawal of funds, loss of interest, and
higher rate of income taxes were not the direct result of its actions,
but rather the result of complainant's own independent decision. Finally,
the agency determined that complainant's claim of mental anguish and
loss of reputation is insufficient to establish that he is aggrieved.
On appeal, complainant argues that the agency's actions against him
constituted harassment. Complainant maintains that the agency has
disregarded the fact that for nineteen days, he was facing impending
unemployment and he had to act to secure employment and reduce his
debts to a manageable level. According to complainant, he experienced a
tremendous loss of self-esteem. Complainant states that he was mocked by
coworkers who call him �Lazarus.� Complainant contends that the agency
forced him to take administrative leave and that during that period his
reputation was sullied by rumor and innuendo. Complainant argues that
the agency's actions have caused him to experience headaches, an upset
stomach, emotional distress, and sleeplessness. Complainant claims that
during his period on administrative leave, his pain and suffering was
exacerbated in his attempts to secure employment.
In response, the agency asserts that complainant experienced no reduction
in pay, benefits, or any other adverse effect to the terms and conditions
of his employment. The agency maintains that complainant accepted
the opportunity offered by management to be on administrative leave
and that complainant was not required to take administrative leave.
The agency argues that complainant has made no allegations that the
agency is responsible for severe or pervasive working conditions that
created a hostile work environment. The agency asserts that the instant
complaint fails to state a claim, is moot, and alleges that a mere
proposed personnel action is discriminatory.
The Commission finds with regard to claim (1) that it was properly
dismissed pursuant to 29 C.F.R. �1614.107(a)(1), on the grounds of failure
to state a claim. We find that complainant failed to establish that
he suffered harm to a term, condition, or privilege of his employment
as a result of the proposed reduction in force. Further, this claim is
dismissed pursuant to 29 C.F.R. �1614.107(a)(5) on the grounds that it
alleges that a proposal to take a personnel action is discriminatory.
We find that the higher rate of income taxes and loss of interest
income that complainant experienced were due to independent decisions by
complainant that can not be directly attributed to the agency. As for
the loss of self-esteem, damage to reputation, and mental and physical
ailments that complainant experienced, we find that these factors do not
bolster complainant's claim that he suffered harm with regard to a term,
condition, or privilege of his employment as a result of the issuance
of the proposed reduction in force.
With regard to claim (2), concerning complainant being placed on
administrative leave, we find that complainant has not established
that he suffered harm with respect to a term, condition, or privilege
of his employment. Complainant has not refuted the agency's position
that he received full pay and benefits during the period that he was
on administrative leave. Complainant has also not made a persuasive
showing that the administrative leave was a form of punishment.
We further find that the administrative leave, proposed reduction in
force, and the reassignment to the Western Region are not of sufficient
severity or pervasiveness to state a claim of harassment. Accordingly,
the agency's dismissal of claim (2) on the grounds of failure to state
a claim was proper.
With regard to claim (3), we find that although complainant referenced
this claim in some documents, complainant did not intend to raise claim
(3) as an independent claim of discrimination. We note that complainant
has not requested any relief that could remedy the incident in claim
(3). Furthermore, complainant makes no arguments on appeal indicating
that claim (3) is part of the complaint. Therefore, we find that claim
(3) is not part of the complaint and we find that there is no need to
consider whether such a claim would state a claim.
The agency's dismissal of the 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
August 21, 2003
__________________
Date