01A43283_r
11-09-2004
Abubakar O. Omar, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Abubakar O. Omar v. Department of Homeland Security
01A43283
November 9, 2004
.
Abubakar O. Omar,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A43283
Agency No. I-03-C150
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated March 29, 2004, dismissing his complaint of
unlawful employment discrimination. According to the agency's decision,
complainant alleged that he was subjected to discrimination on the basis
of national origin (West African) when:
1. On January 24, 2003, despite receiving a dismissal certificate
regarding domestic violence charges involving complainant's wife, his
supervisor refused to return his service weapon.
2. On April 23, 2003, complainant received oral counseling for hanging
up the telephone on his supervisor.
3. In late April or early May 2003, complainant received oral counseling
for having left his service weapon at home.
4. On June 6, 2003, complainant's supervisor questioned complainant
about his reasons for leaving work after his shift was over when he left
because he felt sick.
5. On June 11, 2003, complainant became aware that he was the subject
of an Office of Internal Audit (OIA) investigation concerning his time
and attendance records.
6. On June 12, 2003, complainant's supervisor made the remark to
complainant, �Did you buy suntan lotion, yet?�
The agency dismissed the claims on numerous grounds.
On appeal, complainant states that the �onus of my complaint� is the June
12, 2003 incident in claim 6. The Commission will, however, consider
all the claims in the complaint because complainant may also still be
raising these claims as more than background information.
Claims 3, 4, & 6
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 and find that complainant is not aggrieved
as a result of the acts alleged in claims 3, 4 and 6. Nothing in the
record indicates that complainant suffered any harm or loss with respect
to a term, condition, or privilege of employment for which there is a
remedy. Complainant has failed to explain how these incidents rendered
him aggrieved. Specifically, there is no evidence that any management
official took any action against him affecting a term, condition or
privilege of his employment. Moreover, the Commission does not find
that complainant's claims are sufficiently severe so as to state a claim
of harassment.
Claims 1 & 2
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. The Commission's regulations, however,
provide that the time limit will be extended when the complainant shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by circumstances
beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or the
Commission. See 29 C.F.R. � 1614.105(a)(2).
The record discloses that the alleged discriminatory events in claims 1
and 2 occurred between January 24, 2003 and April 23, 2003. We concur
with the agency and find that complainant did not initiate contact with
an EEO Counselor until June 25, 2003, which is beyond the forty-five
(45) day limitation period. Complainant has presented no persuasive
arguments or evidence on appeal warranting an extension of the time
limit for initiating EEO Counselor contact.
Claim 5
As to claim 5, we find that this claim is outside the purview of
the EEO process and that the agency properly dismissed this matter
for failure to state a claim. We find that complainant is improperly
attempting to use the EEO process to collaterally attack the outcome of
an internal investigation. The Commission has held that an employee
cannot use the EEO complaint process to lodge a collateral attack on
another proceeding. See Wills v. Department of Defense, EEOC Request
No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service,
EEOC Request No. 05940585 (September 22, 1994). The proper forum in
which to challenge OIA proceedings is within agency's internal OIA
proceedings itself. Complainant is not challenging the issuance of any
discipline resulting from the OIA investigation.
Hostile Work Environment
If we consider the entire complaint as one claim of a hostile work
environment, we find, as did the agency, that the complaint raises issues
insufficiently severe or pervasive so as to state a claim of harassment.
Thus, such a claim of harassment is properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(1) for failure to state a claim.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
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
November 9, 2004
__________________
Date