01996775
07-24-2000
Attila Hakimoglu, Complainant, v. James Lee Witt, Director, Federal Emergency Management Agency Agency.
Attila Hakimoglu v. Federal Emergency Management Agency
01996775
July 24, 2000
.
Attila Hakimoglu,
Complainant,
v.
James Lee Witt,
Director,
Federal Emergency Management Agency
Agency.
Appeal No. 01996775
Agency No. 99022
DECISION
On August 30, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD), dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act, as amended 42 U.S.C. � 2000e et seq.<1> The Commission accepts
the appeal in accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be
codified at 29 C.F.R. � 1614.405).
On May 3, 1999, complainant contacted the EEO office claiming that he
was subjected to discrimination based on National Origin (Turkish)
and reprisal. Informal efforts to resolve complainant's concerns
were unsuccessful. Accordingly, on May 31, 1999, complainant filed a
formal complaint.
On July 27, 1999, the agency issued a FAD, dismissing the complaint
for failure to state a claim. The FAD framed complainant's claims as
follows<2>:
On May 3, 1999, complainant was terminated from FEMA TX-NPSC because of
his National Origin (Turkish). Complainant stated that he was terminated
after he had made an appointment with an Equal Rights Officer.
On April 15, 1999, complainant was harassed and subjected to offensive
jokes regarding his military duty in the Turkish Army. Complainant
alleges his supervisor laughed and remarked in a condescending tone of
voice that he was afraid of the complainant now.
On or about March 21, 1999, complainant was discriminated against when
his supervisor harassed him by asking him to seek and apply for other
positions in FEMA TX-NPSC. Complainant alluded to his supervisor not
wanting a person of Turkish heritage on his staff.
The agency dismissed claims 1-3 for failure to state a claim. According
to the FAD, management was not aware of complainant's participation in
the protected activity in claim 1, making an appointment with an EEO
counselor, prior to the decision to terminate complainant's employment.
The remaining claims, 2 and 3, were dismissed because complainant's
complaint did not indicate that he was an aggrieved employee.
Claim 1
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an
agency shall dismiss a complaint that fails to sate 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.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 22, 1994).
In claim 1, complainant claimed that he was terminated on May 3, 1999,
because of his Turkish heritage. Complainant also claimed and that
the termination is in reprisal for contacting the EEO Counselor on
May 3, 1999. The agency claims that complainant was terminated for
excessive use of unscheduled annual and sick leave and that management
was unaware of complainant's intention to contact the EEO Counselor prior
to the termination. After a review of the agency's final decision in
claim 1, the Commission finds that the agency has addressed the merits
of complainant's claim without a proper investigation as required by
the regulations. We find that the agency's articulated reason for
the action in dispute goes to the merits of complainant's complaint,
and is irrelevant to the procedural issue of whether he has stated a
justiciable claim under Title VII. See Osborne v. Department of the
Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United
States Postal Service, EEOC Request No. 05930220 (August 12, 1993);
Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642
(August 15, 1991). Because the termination of employment, regardless of
the reason behind it, involves a �present harm or loss with respect to
a term, condition, or privilege of employment�, the agency's decision to
dismiss claim 1 for failure to state a claim was improper and REVERSED.
Claims 2 and 3
In claim 2, complainant alleged that he was harassed and subjected to
offensive jokes on April 15, 1999, regarding his military service in
Turkey and that his supervisor laughed and remarked in a condescending
manner. The agency dismissed claim 2 on the grounds that it failed
to state a claim. According to the FAD, because there is only one
reported incident involving derogatory comments about complainant's
Turkish heritage, it is not sufficient to sustain a claim of harassment
based on national origin.
In claim 3, complainant alleged that he was discriminated against
around March 21, 1999, when his supervisor encouraged him to apply and
provided information about obtaining another position at the agency.
The agency dismissed claim 3 on the grounds that it failed to state a
claim, because complainant has not demonstrated that he is an aggrieved
employee. Specifically, the agency claims that by providing job leads
and names of headhunters, complainant has not demonstrated that a term
or condition of his employment has been affected.
The Commission has repeatedly found that remarks or comments unaccompanied
by a concrete agency action are not a direct and personal deprivation
sufficient to render an individual aggrieved for the purposes of
Title VII. See Backo v. United States Postal Service, EEOC Request
No. 05960227 (June 10, 1996); Henry v. United States Postal Service,
EEOC Request No. 05940695 (February 9, 1995). The Commission does
not view the matters raised in claims 2 and 3 as single, unrelated
incidents. When they are viewed together in a light most favorable to
complainant in conjunction with the final termination for excessive use
of unscheduled leave addressed above in claim 1, these incidents are
related to a present harm or loss with respect to a term, condition,
or privilege of employment. Derogatory comments regarding complainant's
heritage and complainant's receipt of job leads and names of headhunters
viewed together with his eventual termination demonstrate that a term
or condition of his employment has been affected. Therefore, we find
that the dismissal of claims 2 and 3 was improper and is REVERSED.
Based upon a review of the record, and for the foregoing reasons, it is
the decision of the Commission to REVERSE the final agency's decision
dismissing complainant's complaint for failure to state a claim.
We REMAND all of the claims to the agency for further processing in
accordance with this decision and applicable regulations.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). 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 (K1199)
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 64
Fed. Reg. 37,644, 37659-60 (1999) (to be codified and hereinafter referred
to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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 (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, Acting Director
Office of Federal Operations
July 24, 2000
Date
1On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into effect.
These regulations apply to all federal sector EEO complaints pending at
any stage in the administrative process. Consequently, the Commission
will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations, as
amended, may also be found at the Commission's website at www.eeoc.gov.
2Although complainant's claims were not numbered in the FAD, we number
them here for clarification.