0120060688
05-30-2007
Steven D. Roach, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Steven D. Roach,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01200606881
Agency No. 04-2498
DECISION
Complainant appeals to the Commission from the agency's October 11, 2005
decision finding no discrimination. Complainant alleges that he was
discriminated on the bases of race (American Indian), religion (Native
American), age (date of birth: June 14, 1962) and in reprisal for his
wife's prior protected EEO activity when he applied for the position
of Revenue Officer (RO), GS-169-07 (according to Vacancy Announcement
Number OGD-04-1169-7-001), and the agency allegedly harassed him in the
following manner in May 2004:
1. Informed complainant by electronic mail that the RO positions were
announced to be filled in Georgia and Alabama.
2. Informed complainant by telephone that RO positions were announced
to be filled in Georgia and Alabama.
3. Tampered with complainant's application by removing the locations of
Georgia and Alabama from his areas of considerations.
4. Informed complainant that there were no RO positions announced in
Georgia and Alabama.
The agency, in its decision, concluded that it asserted a legitimate,
nondiscriminatory reason for its actions, which complainant failed
to rebut. Complainant now appeals from that decision.
As to the claim of harassment, the agency noted that complainant's alleged
discriminatory harassment consisted of the incidents as stated in claims 1
through 4. The record indicates that complainant was found ineligible for
the vacancy to which he applied because he did not send in the necessary
information about his educational background. The agency found that there
was no evidence that complainant was subjected to harassing verbal or
physical conduct based on his protected class status. The agency asserted
that, other than the statements of complainant and his wife, there was
no evidence that any agency officials communicated to complainant that
there were available positions in Georgia and Alabama. Furthermore, the
agency claimed that the vacancy announcement listed possible vacancies
in 83 cities, none of which were in those two states. The agency argued
that complainant's electronic application listed locations in Florida,
North Carolina and South Carolina where complainant was willing to work
and there was no evidence that the agency tampered with that application.
The agency articulated that, even if complainant's allegations were true,
the alleged incidents would not amount to unlawful harassment. The
agency stated that the challenged conduct was not sufficiently severe or
pervasive to create an unlawful hostile environment. The agency asserted
that the record showed no discriminatory bias by agency officials against
complainant. Agency officials claimed that they contacted complainant
on several occasions offering him the opportunities for job interviews.
Moreover, the agency found that there was no evidence that the agency
officials who interacted with complainant were even aware of his national
origin, religion, age or his wife's prior EEO activity at the time of
the events at issue. The agency reported that they found no reason why
the agency officials would have knowledge of complainant's own protected
activity which occurred approximately nine years earlier and with another
agency.
The agency argued that the events complainant raised, taken together,
even if they occurred as stated, were insufficient to establish a
pattern of severe, pervasive and repetitive discriminatory behavior.
The agency reported that, taken individually, none of the events
raised by complainant constituted unlawful disparate treatment on any
of complainant's alleged bases. The agency denied the events at issue
occurred and stated that there was nothing in the evidence to support
complainant's claim that jobs existed and were filled in those geographic
areas of interest to him.
The Commission finds that complainant failed to show that the agency's
reasons are pretext for discrimination. Furthermore, complainant failed
to show, by a preponderance of the evidence that he was discriminated
against on the bases of race, religion, age or reprisal. To the extent
that complainant is claiming that the non-selection for the listed vacancy
announcement number was discriminatory, we find no evidence supporting
such an assertion.
The agency's decision finding no discrimination 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
May 30, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120060688
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120060688