Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Feb 13, 2013

0120112533 (E.E.O.C. Feb. 13, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120112533

Agency No. BOP-2011-0106

DECISION

Complainant filed an appeal with this Commission from the Agency's decision dated March
15, 2011, 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 following reasons, the Commission AFFIRMS the Agency’s Final Decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Correctional
Officer at the Agency’s Federal Detention Center facility in Houston, Texas. On December
29, 2010, Complainant filed a complaint alleging that the Agency subjected him to
discrimination on the bases of national origin (Hispanic) and in reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when:

1. On September 22, 2010, Complainant learned that funding for the
Hispanic Program's Commemorative Month activities was not allocated
from the Affirmative Action Program budget.

2. On October 4, 2010, the Employee's Club funded $250 to the Hispanic
Program as opposed to the amount ($300) previously approved from the
Affirmative Action Program budget.

In its Final Decision, the Agency dismissed Complainant’s complaint pursuant to 29 C.F.R.
§ 1614.107(a)(1), for failure to state a claim. The Agency found that Complainant’s complaint
did not allege discrimination with respect to a term, privilege or condition of employment and
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that Complainant was not aggrieved as a result of the Agency’s actions described in the
complaint.

ANALYSIS AND FINDINGS

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. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).

As a preliminary matter, we note that Complainant’s concerns regarding the processing of his
complaint were properly directed to the Agency’s EEO Director for a response and
memorialized in the complaint file. Complainant seems to be arguing that the EEO Counselor
did not complete a proper investigation. An investigation, however, is undertaken only after a
complaint has been accepted. In this case, the complaint was never accepted. We do not find
that Complainant challenges the framing of his complaint on appeal. We find a fair reading of
Complainant’s complaint is that he alleges discrimination in the manner in which funding was
supplied for the Hispanic Program Commemorative Month. We find the Agency properly
identified Complainant’s claims from Complainant’s complaint and pre-complaint submissions.

In the instant case, we find the Agency properly dismissed Complainant’s claim pursuant to 29
C.F.R. § 1614.107(a)(1) for failure to state a claim. We find that a term, condition, or
privilege of Complainant’s employment was not adversely affected by the Agency’s decisions
regarding the overall funding of a special emphasis program as described in Complainant’s
complaint. See Lovato v. Dep’t of the Air Force, EEOC Appeal No. 01991051 (July 26,
2001).

CONCLUSION

We therefore AFFIRM the Agency’s Final Decision dismissing Complainant’s complaint.

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:

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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

(S0610)
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

(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
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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

February 13, 2013
Date