0120102521
10-07-2010
Daniel J. Salak, Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.
Daniel J. Salak,
Complainant,
v.
Lisa P. Jackson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120102521
Agency No. 20100045HQ
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 6, 2010, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. In his complaint, as clarified on appeal, Complainant alleged that the Agency subjected him to discrimination on the bases of sex (male), disability (associated with spouse with difficult post-pregnancy period and newborn with medical issues),1 and reprisal for prior protected EEO activity when on2:
1. December 15, 2009, upon his return from work after taking six weeks of leave to care for his wife while she was at home recovering from childbirth, he was denied the use of sick leave under the Family Medical Leave Act (FMLA) and ordered to take annual leave and leave without pay (LWOP);
2. December 16, 2009, the Agency requested that he provide medical documentation confirming his spouse's medical incapacitation to support his request for sick leave under the FMLA,3 and
3. January 15, 2010, he was advised that he was being reassigned to Seattle, WA, and ordered to report to the Philadelphia, PA Office three times a week until the transfer to Seattle was completed.
The Agency dismissed the complaint for failure to state a claim. It found, in relevant part, that Complainant did not engage in prior protected EEO activity.
CONTENTIONS ON APPEAL
Complainant contends that he engaged in prior EEO activity. He argues that when the Agency demanded additional medical information, he protested the invasive nature of the inquiry on December 18, 2009. He writes that his "original claim" of discrimination was made in an email he provided to Special Agent in Charge (SAC) D.D. This refers to a memorandum he sent on January 14, 2010, which allegedly claimed the continued denial of sick leave violated Title VII.
ANALYSIS AND FINDINGS
EEOC regulations state that an agency may dismiss a complaint that fails to state a claim under either 29 C.F.R. � 1614.103 or � 1614.106(a). See 29 C.F.R. � 1614.107(a). A complainant must establish that he is aggrieved for the purpose of satisfying these requirements; in order to be aggrieved a complainant must allege discrimination or retaliation of the kind prohibited by at least one of the statutes enforced by the Commission, e.g., Title VII or the Rehabilitation Act. Where a complaint states a claim or claims that are beyond the reach of at least one of the relevant EEO laws, the Commission holds that it is proper for an agency to dismiss the complaint for failure to state a claim. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998).
It is unlawful to discriminate against an individual because he has opposed any practice made unlawful under the employment discrimination statutes. This protection applies if an individual explicitly or implicitly communicates to his employer or other covered entity a belief that its activity constitutes a form of employment discrimination that is covered by any of the statutes enforced by the EEOC. EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, at 8-3; 8-4 (May 20, 1998) (Compliance Manual).
We agree with the Agency's finding that Complainant did not engage in EEO activity prior to the events in claims 1 and 2. While Complainant contends that he protested as invasive the Agency's request for medical information demonstrating that his wife had an incapacitation to support his request for FMLA sick leave, this occurred after the events in claims 1 and 2. Also, complaining that the request was invasive did not implicitly communicate a belief that Title VII or the Rehabilitation Act were violated. Complainant did not make his complaint explicit until the alleged January 14, 2010 email/memorandum.
Further, the allegation that the events in claims 2 and 3 were discrimination based on sex and disability constitute a collateral attack on the FMLA process. The FMLA falls under the regulatory ambit of the Department of Labor, not the Commission; therefore, the Commission has no jurisdiction over this type of claim. See, e.g., Jordan v. Department of Defense, EEOC Appeal No. 0120055250 (December 28, 2006) ("[T]he Commission does not have jurisdiction over FMLA claims.").
Claim 3 states a claim of reprisal discrimination. A person is protected against retaliation for opposing perceived discrimination if he had a reasonable and good faith belief that the opposed practices were unlawful. It is well settled that a violation of the retaliation provision can be found whether or not the challenged practice ultimately is found to be unlawful. Compliance Manual, at 8-8. Complainant contends that he explicitly claimed discrimination in violation of Title VII in an email/memorandum he sent on January 14, 2010, to SAC D.D. He contends that the very next day, he was told that he was being reassigned to Seattle, WA, and had to report to the Philadelphia, PA office three times a week. This states a claim of reprisal discrimination for oppositional EEO activity.
Claim 3 also states a claim of disability discrimination. The Rehabilitation Act prohibits discrimination because of a covered individual's association with a person with a disability. EEOC Compliance Manual Section 2, "Threshold Issues," No. 915.003, at 2-13 (May 12, 2000). It also states a claim of sex (male) discrimination.
Claims 1 and 2, as numbered and described in this decision, are DISMISSED. The dismissal of claim 3 is REVERSED.
ORDER
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108. The remanded claim is whether Complainant was discriminated against based on his sex (male), disability (associated with spouse with difficult post-pregnancy period and newborn with medical issues), and reprisal for prior protected EEO activity when on January 15, 2010, he was advised that he was being reassigned to Seattle, WA, and ordered to report to the Philadelphia, PA Office three times a week until the transfer to Seattle was completed. The Agency shall acknowledge to the Complainant that it has received this claim within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the
Court 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
October 7, 2010
__________________
Date
1 On appeal, Complainant raises the bases of sex (male) and disability (associated with spouse with difficult post-pregnancy period and newborn with medical issues). This is permissible. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462-466 (5th Cir. 1970) (failure to check box on a complaint form signifying a basis of discrimination does not preclude a claim on that basis being raised later); Rover v. Navy, EEOC Appeal No. 01923936 at footnote 2 (November 24, 1992) (additional bases may become part of a complaint as they become revealed through the investigation process, so that the agency's acceptance letter may not prove to limit the alleged basis(es)); Messler v. Department of Air Force, EEOC Appeal No. 01883183 (September 15, 1988) (a basis of discrimination raised for the first time on appeal adjudicated on the merits where there was sufficient information to do so).
2 Complainant incorporated into the complaint a letter by his attorney that raised marital status as a basis of discrimination. On appeal, Complainant clarifies that he is not raising marital status, so we need not address this matter.
3 Complainant requested the leave under the FMLA, and the Agency asked for medical documentation to support the request. The Agency did not characterize the complaint as containing claim 2, but it was in the complaint and Complainant writes on appeal that it is part of his complaint.
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0120102521
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102521