01A40131_r
02-04-2004
Andre S. Martinez, Jr., Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
Andre S. Martinez, Jr. v. Department of Housing and Urban Development
01A40131
February 4, 2004
.
Andre S. Martinez, Jr.,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A40131
Agency No. FW-02-08
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated September 23, 2003, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of national origin and reprisal for prior EEO activity when:
The agency excluded complainant's representative from participation in
another employee's (E1) EEO matter by using documents obtained from a
prior case complainant filed in federal court.
On September 26, 2001, complainant learned that the agency shared his
confidential documents with E1.
Complainant's request that counsel for the agency recuse himself from
complainant's EEO matter was denied.
Counsel for the agency reported complainant's representative to the
Unauthorized Practice of Law Committee for the State Bar of Texas.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. The agency found that complainant did not
allege any personal harm in these claims, but instead, that these claims
relate to the EEO case of another employee (E1) in which complainant
was not involved and that complainant has not suffered any adverse
employment action, injury, or other loss as a result of the allegations
described therein. The agency also found that claim (2) was untimely in
that complainant waited until December 12, 2002, to initiate EEO contact,
which is beyond the 45 day time limit. The agency dismissed claim (2)
pursuant to 29 C.F.R. � 1614.107(a)(2).
On appeal, complainant claims, inter alia, that the agency has violated
complainant's right to privacy concerning documents complainant submitted
in connection with settlement of a prior civil action complainant filed
in U.S. District Court, also against the agency.<1>
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 that the complaint fails to state a claim for
which there is a remedy and is properly dismissed. We find the record
reveals that complainant does not allege that the agency has excluded
complainant's chosen representative from participation in the instant EEO
matter. Rather, complainant claims that prior events transpiring between
counsel for the agency and complainant's representative may adversely
affect the outcome of complainant's complaint. We find complainant
is not personally aggrieved by either the agency's choice of counsel,
nor the history of his representative in the EEO process. We find the
complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
Because of our disposition, we need not address whether claim (2) was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).
Accordingly, we AFFIRM the agency's dismissal of the complaint.
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
February 4, 2004
__________________
Date
1The Commission notes that the Privacy Act,
5 U.S.C. � 552(g)(1), provides an exclusive statutory framework governing
the disclosure of identifiable information contained in federal systems of
records and jurisdiction rests exclusively in the United States District
Courts for matters brought under the provisions of the Privacy Act.
Bucci v. Department of Education, EEOC Request Nos. 05890289, 05890290,
05890291 (April 12, 1989).