0120131794
08-13-2013
Adam Palacois, III, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Adam Palacois, III,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120131794
Agency No. DAL-1-20636-SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 4, 2013, 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 Claims Representative at the Agency's Field Office in Oklahoma City, Oklahoma.
On August 1, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race, national origin and sex when on May 16, 2012; he was not selected for the position of Social Insurance Specialist. The complaint was accepted for investigation.
During the processing of his complaint, Complainant filed an amendment to his complaint on January 29, 2013 and January 31, 2013. In his amendments, Complainant alleged that he was subjected to discrimination on the basis of reprisal when his representative (Representative), also an employee of the Agency, had been denied official time to work on his complaint. Complainant noted that the Representative was denied official time on October 29, 2012 and on January 25, 2013.
The Agency dismissed the amendments by letter dated March 4, 2013. The Agency found that the claim for official time for October 29, 2012, was raised in an untimely manner. Further, as to the claim for official time in January 2013, the Agency determined that Complainant failed to state a claim. The Agency found that Complainant failed to provide justification for the request for official time. Therefore, the Agency found that the amendments should be dismissed. The Agency noted that if Complainant was dissatisfied with the decision, he may file an appeal with the Commission.
This appeal followed. On appeal, Complainant requested that the Commission remand the complaint for further processing. The Agency, in response to the appeal, stated that the appeal was premature. As such, the complaint should be dismissed.
ANALYSIS AND FINDINGS
We note that the Agency issued the letter dismissing the amendment which provided Complainant with appeal rights to the Commission. In doing so, the Agency treated the "amendments" as a separate complaint.
In the case at hand, Complainant alleged unlawful reprisal when the Representative was denied official time. If a Complainant is an employee of an Agency and he designates another employee of the Agency as his representative, the Representative shall have a reasonable amount of time, if otherwise on duty, to prepare the complaint and respond to Agency and EEOC requests for information. 29 C.F.R. � 1614.605(b). We have consistently held that when a representative claiming reprisal discrimination raises the issue of being denied official time to represent another employee in the EEO process, the issue is properly raised by that Complainant, not the representative. See Louie v. Dep't of Treasury, EEOC Request No. 0120093128 (Jan. 13, 2010); Kessinger v. U.S. Postal Serv., EEOC Request No. 0120081578 (Feb. 1, 2010).
The Commission finds that the alleged events concern Complainant's pending complaint. Thus, the Agency should not have treated the claims of denial of official time as a new and separate complaint. Therefore, the Commission finds that the dismissal was not appropriate and the claim of denial of official time should be addressed in conjunction with the pending EEO matter. The Agency noted on appeal that the underlying complaint has been forwarded to an EEOC Administrative Judge (AJ). Therefore, we find that the Agency should similarly forward the claims of denial of official time to the AJ for processing.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's dismissal and REMAND the matter for further processing in accordance with the ORDER below.
ORDER
The Agency shall provide a copy of the amendments to the EEOC AJ assigned to Complainant's complaint within 15 calendar days.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
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
August 13, 2013
__________________
Date
2
0120131794
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131794