Albert B. Ramirez, Jr., Complainant,v.Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionNov 22, 2004
01A44697 (E.E.O.C. Nov. 22, 2004)

01A44697

11-22-2004

Albert B. Ramirez, Jr., Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.


Albert B. Ramirez, Jr. v. Department of Homeland Security

01A44697

11-22-04

.

Albert B. Ramirez, Jr.,

Complainant,

v.

Thomas J. Ridge,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 01A44697

Agency No. 04-0812

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated May 24, 2004, 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

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. In his complaint, complainant claimed that

he was subjected to discrimination on the bases of national origin

(Hispanic) and age (D.O.B. February 26, 1958) when he was allegedly

subjected to a hostile work environment. In support of his claim,

complainant identified the following incidents:

On January 1, 2004, complainant was removed from his assignment as a

firearms instructor;

On December 5, 2003, complainant was removed from his assignment as a

collapsible steel baton and OC (CSB/OC) instructor;

On October 20, 2003, complainant was removed from the bike patrol

unit; and

On unspecified dates, complainant was denied career opportunities

and awards.

Complainant subsequently withdrew incidents (1), (2), and (4). The agency

dismissed incident (3) on the ground that complainant filed a negotiated

grievance on the same matter prior to filing his EEO complaint. Prior to

a request for a hearing, the agency shall dismiss an entire complaint

where the complainant has raised the matter in a negotiated grievance

procedure that permits allegations of discrimination and � 1614.301

indicates that the complainant has elected to pursue the non-EEO process.

29 C.F.R. � 1614.107(a)(4). A memorandum dated November 14, 2003,

indicates that on November 12, 2003, complainant initiated a step 1

grievance meeting concerning his removal from the bike patrol unit.

Article 33E of the collective bargaining agreement defines a step 1

grievance as an informal matter to be taken up orally by the employee

with his first-line supervisor. Agency Appeal File, Tab N, page 3.

An election to proceed under a negotiated grievance procedure is indicated

by the filing of a timely written grievance. 29 C.F.R. � 1614.301(a).

Since the grievance at issue in this case never got past the informal

stage, complainant did not file a written grievance, and consequently,

the agency's decision to dismiss the complaint under subsection (a)(4)

was incorrect.

Nevertheless, the complaint must still be dismissed for failure to

state a claim. See 29 C.F.R. � 107(a)(1). One states a claim if

he is aggrieved, i.e., if he suffers a direct or personal 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 claims that

he is aggrieved by virtue of having been removed from the bike patrol.

However, the agency promptly restored him to the bike patrol after only

three weeks. He has not shown that he has suffered any loss in pay or

benefits as a result of being temporarily removed from the bike patrol.

We therefore find that complainant has not identified a harm or loss in

connection with being taken off the bike patrol that can be remedied,

and consequently, that he has failed to state a claim. The agency's

dismissal of this complaint is therefore 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

_____11-22-04_____________

Date