0120111046
02-14-2012
Luis Lara, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Luis Lara,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120111046
Agency No. HSCBP000352010
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 27, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Senior Patrol Agent at the Agency’s Riverside Border Patrol Station
facility in Riverside, California.
On September 5, 2010, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination on the bases of national origin
(Hispanic), color (Brown), and reprisal for prior protected EEO activity
when he was subjected to ongoing harassment beginning in March 2010.
In a statement that was part of his complaint, Complainant alleged that
the newly appointed Patrol Agent in Charge (PAIC) continuously made
derogatory comments about Complainant’s work ethic, suggested that
he was insubordinate, implied that he would ensure that Complainant
was never be promoted, and attempted to turn Complainant’s immediate
supervisor against him by suggesting to her that Complainant had said
things about her when he had not.
Complainant also alleged that the station he worked in was quite
small with only ten employees. He said that prior to the new PAIC
taking over, there was an agreement with the union that agents had the
option of traveling by themselves or with a partner. Complainant and
one other agent were the only agents who elected to travel together.
The remaining agents travelled alone. Complainant alleged that shortly
after he complained, in May 2010, about the alleged discriminatory
harassment by the PAIC, the PAIC announced that agents could no longer
travel together. Because all the other agents travelled solo, Complainant
asserted that this change was specifically directed at him in retaliation
for complaining about the harassment.
The Agency dismissed the complaint, pursuant to 29 C.F.R. §
1614.107(a)(4), for raising the same matter in a negotiated grievance
procedure that allows for claims of discrimination to be raised.
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.301(a) states that when a person is
employed by an agency subject to 5 U.S.C. § 7121(d) and is covered by a
collective bargaining agreement that permits claims of discrimination to
be raised in a negotiated grievance procedure, a person wishing to file a
complaint or grievance on a matter of alleged employment discrimination
must elect to raise the matter under either part 1614 or the negotiated
grievance procedure, but not both. An aggrieved employee who files
a grievance with an agency whose negotiated agreement permits the
acceptance of grievances which allege discrimination may not thereafter
file a complaint on the same matter under this part 1614 irrespective
of whether the agency has informed the individual of the need to elect
or whether the grievance has raised an issue of discrimination.
The record shows the Agency in this case is subject to 5 U.S.C. § 7121(d)
and its grievance allows for claims of discrimination to be raised.
The record contains a Step 1 grievance, dated July 30, 2010, concerning
a July 6, 2010 meeting between the PAIC and the Riverside patrol agents
in which it is asserted that the PAIC made accusatory and unprofessional
comments towards the agents. Complainant was not specifically mentioned
in the grievance and, as relief, among other things, a written apology
was demanded to everyone in the station. The grievance was signed by
the union’s Lead Station Representative. Complainant’s EEO complaint
was filed over a month later on September 5, 2010.
Under these circumstances, we do not find that the July 2010
grievance raised the same matters as the September 2010 EEO complaint.
The grievance focused on a single meeting that occurred on July 6,
2010, and there is no indication that it was brought on Complainant’s
personal behalf rather than on behalf of every agent in the station.
The September 2010 EEO complaint, on the other hand, alleges a pattern
of ongoing harassment beginning in March 2010 and continuing. While the
July 6, 2010 meeting was one example of this pattern of harassment by
the PAIC, it did not constitute the entire claim. Therefore, we find
that the Agency improperly dismissed the complaint on grounds that
Complainant had earlier elected to pursue his ongoing harassment claim
in the grievance process.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is REVERSED and the complaint is REMANDED for further processing
pursuant to the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claim (ongoing
harassment/hostile work environment) in accordance with 29 C.F.R. §
1614.108 et seq. The Agency shall acknowledge to the Complainant that
it has received the remanded claims 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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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
February 14, 2012
__________________
Date
2
0120111046
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111046