0120064764
03-13-2007
Miguel Rodez, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Miguel Rodez,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01200647641
Agency No. HS05CIS000943
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 6, 2006, 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. For the
reasons provided below, we AFFIRM the FAD in part and REVERSE and REMAND
in part.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of national origin (Cuban American), sex
(male), and reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964 when:
1. A management official (RMO: male, national origin unknown) continued
to deny his request for voice recognition software (VRS);
2. RMO applied the office dress code differently to complainant than
it did to other employees and failed to respond to his requests for
clarification of the dress code;
3. In the summer of 2005, the agency denied complainant sufficient
official time to work on a previous complaint; and
4. RMO only granted four hours of official time to work on the instant
complaint, which complainant felt was insufficient.
The agency dismissed claims 1 and 2 on the grounds that these claims had
been raised in previous EEO complaints. Regarding claim 3, the agency
dismissed, holding that the claim should have been raised in the same
complaint where the denial occurred, rather than in the instant complaint.
Regarding claim 4, the agency found that four hours of official time
was sufficient. Complainant contends that four hours is insufficient,
and that he has Major Depressive Disorder which interferes with his
"ability to concentrate, recall information, to read, to write and focus,
which are thinking abilities required for filing a formal complaint
of discrimination." Complainant's appellate brief, p. 2.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
Regarding claim 1, the record supports the agency's contention that
complainant has raised the issue of denial of VRS in previous EEO
complaints. Regarding claim 2, we find that complainant has failed
to state a claim. We note that 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). Complainant has not
shown how the agency's actions render him aggrieved.
Regarding claim 3, the agency dismissed the complaint pursuant to 29
C.F.R. � 1614.107(a)(8). We note, however, that the Commission has stated
that an allegation pertaining to the denial of official time states a
separately-processable claim alleging a violation of the Commission's
regulations, without requiring a determination of whether the action
was motivated by discrimination. See Edwards v. United States Postal
Service, EEOC Request No. 05960179 (December 23, 1996). Essentially,
the Commission has held that it has the authority to remedy a violation of
29 C.F.R. � 1614.605 without a finding of discrimination. Id. Thus such
claims should not be processed in accordance with 29 C.F.R. � 1614.107,
since the focus is not on the motivation, but rather the justification
of why the complainant was denied a reasonable amount of official time.
More specifically, dismissal under 29 C.F.R. � 1614.107(a)(8) is
inappropriate in the instant circumstances, as that section concerns
discrimination claims.
In the instant complaint the agency contends that the matter was decided
by an EEOC Administrative Judge on August 10, 2005. However, the agency
has provided no evidence to support such a contention. As there is no
evidence to show that the claim has already been decided, and since �
1614.107 does not apply to claims of denial of official time, we find
that the agency incorrectly dismissed this issue.
Regarding claim 4, we find that the agency provided complainant
sufficient official time when it granted him four hours to interview
the EEO Counselor and prepare the formal complaint. The agency
argues that the four allegations raised were not complex and that
in his formal complaint, complainant referenced pages in the EEO
Counselor's report rather than restate them in the complaint form.
Complainant argues that the very reason he referenced the Counselor's
report was because the time granted him was insufficient to do more.
In addition, complainant contends that because of his Major Depressive
Disorder, his "ability to concentrate, recall information, to read, to
write and focus," is hampered. Complainant, however, has not shown that
the allegations are, in fact, more complex than as defined in the FAD.
Nor has he shown what additional information he could have added or what
he could have done with more time to somehow reinforce his complaint.
We therefore find that the agency's grant of four hours was sufficient.
Accordingly, the agency's decision dismissing claims 1 and 2 of
complainant's complaint is AFFIRMED. The agency's award of four hours
of official time, raised in claim 4, is also AFFIRMED. However, the
dismissal of claim 3 is VACATED and the issue is REMANDED to the agency
for further processing pursuant to the Order herein.
ORDER (E0900)
The agency shall investigate the following issues:
1. Whether the matter of denial of official time in
complainant's prior complaint was decided by an AJ in that
complaint;
2. If the agency finds that the matter of denial of official
time was not decided by the AJ, the agency shall investigate
whether complainant was denied official time in that complaint.
The investigation shall not address whether such an alleged denial
was discriminatory, but shall only address whether the agency
violated 29 C.F.R. � 1614.605(b). The agency shall include in the
record documentation showing how much time was requested, for what
stated purpose, how much time was granted, and the justification
for the denial of any requested time.
3. The agency shall notify complainant of the opportunity
to place into the record any evidence supporting his claim that
he was denied a reasonable amount of official time.
4. The agency, within 30 calendar days of the date this
decision becomes final, shall issue a decision as to whether
complainant was denied a reasonable amount of official time in
the prior complaint. The agency's decision shall provide appeal
rights to the Commission.
A copy of the decision must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (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 (T0900)
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 (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
March 13, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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0120064764
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120064764