01982438_r
03-24-1999
Ahmed H. Ahmed, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Ahmed H. Ahmed, )
Appellant, )
)
v. ) Appeal No. 01982438
) Agency No. 98-4029
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
Upon review, we find that the agency properly dismissed allegation (1) in
appellant's complaint, pursuant to 29 C.F.R. �1614.107(a), for failure to
state a claim. In allegation (1), appellant indicated that his coworker
informed him that his manager, during an interview with an EEO Counselor
with regard to the instant complaint, made an untrue statement, i.e.,
accusing appellant of threatening the manager. The Commission has held
that to allow the processing of a complaint regarding the participation
of employees in the investigation of another EEO complaint would have
a chilling effect on the processing of EEO complaints. See Calloway
v. Department of the Army, EEOC Appeal No. 01943406 (July 15, 1994).
Under this rule, the comments of the agency official made to the EEO
Investigator or EEO Counselor are not subject to challenge in a separate
EEO complaint. See Androvich v. USDA, EEOC Appeal No. 01950532 (June
11, 1996). Appellant should raise his concerns about the validity of
the subject statement during the investigation of the complaint and/or at
a hearing before an EEOC Administrative Judge. Based on the foregoing,
we find that allegation (1) does not state a separate processable claim.
Upon review, we find that the agency properly dismissed allegations
(3) and (4), pursuant to 29 C.F.R. �1614.107(b), due to untimely
EEO Counselor contact. Appellant alleged that he was subjected to
discrimination when on February 20, 1997, his coworker circulated a
newspaper article with his picture pasted on it (allegation (3)) and on
October 30, 1996, his coworker wrote him threatening notes (allegation
(4)). Appellant indicated that he brought the alleged incidents to
the attention of his manager in a timely manner; however, he did not
contact an EEO Counselor until August 4, 1997. The Commission has held
that an internal appeal of an agency action does not toll the running of
the limitations period. See Hosford v. Veterans Administration, EEOC
Request No. 05890038 (June 9, 1989). On appeal, appellant presented
no persuasive arguments or evidence to show that he contacted an EEO
Counselor with regard to the subject allegations in a timely manner
pursuant to 29 C.F.R. �1614.105(a)(1). Accordingly, the agency properly
dismissed allegations (3) and (4) as untimely.
Finally, in allegation (2), appellant alleged that he was subjected
to harassment which created a hostile work environment, when on July
17 and 24, 1997, his coworkers yelled at him and called him names for
not answering his telephone calls and not returning his telephone
messages to taxpayers on two different occasions. Upon review, we
find that the agency properly dismissed allegation (2), pursuant to 29
C.F.R. �1614.107(a), for failure to state a claim.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment" is created when "a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition, or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
In allegation (2), appellant indicated that he was subjected to harassment
which created a hostile work environment, when his coworkers yelled at
him and called him names for not answering his telephone calls and not
returning his telephone messages to taxpayers on two different occasions.
In view of the proper dismissal of appellant's other allegations, we
find that allegation (2), standing alone, does not state a cognizable
claim under the EEOC Regulations. See Cervantes v. United States Postal
Service, EEOC Request No. 05930303 (November 12, 1993).
Based on the foregoing, the agency's final decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
March 24, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations