0120101829
08-17-2010
Eric Presser, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Eric Presser,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101829
Agency No. 200P06122010100733
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 25, 2010, 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
On November 20, 2009, Complainant contacted the EEO Office. When the matter could not be resolved informally, Complainant filed a formal complaint on January 6, 2010. In his complaint, Complainant alleged that the Agency subjected him to discrimination on the basis of retaliation for prior EEO complaints alleging violation of Title VII, since November 10, 2008, Complainant has been detailed from the Oakland, California Outpatient Clinic to the Martinez, Califorania Outpatient Clinic and the Agency has failed to return him to his prior duties and position.
The Agency dismissed the complaint finding that Complainant alleged the same claim in another prior EEO Complaint filed under Agency No. 200P-0612-2009102259. The Agency noted that in Complainant's prior EEO complaint he alleged discrimination on the basis of race when:
a. On November 7, 2008 and ongoing, Complainant was relieved of his supervisory duties without justification and/or proper documentation.
b. On November 7. 2008 and ongoing, Complainant was detailed from Oakland to Martinez without justification and/or proper documentation.
c. On November 7, 2008 and ongoing, Complainant's tour of duty was changed from Monday-Friday 8:00-4:30 pm to a rotating shift; and
d. On November 7, 2008 and ongoing, management did not provide Complainant due process, and believed false accusations of racism against the complainant with respect to the above employment actions, and treated him differently than other non-white employees engaged in similar conduct, who were not subjected to similar actions as Complainant.
The Agency noted that Complainant's prior EEO complaint was dismissed and pending appeal with the Commission, namely EEOC Appeal No. 0120100408. The Agency determined that the instant matter and the prior complaint involved the same claim. As such, the Agency dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(1).
Complainant appealed asserting that instant complaint is not identical to the prior complaint. Complainant argued that his rights have been violated every day since his detail for he has not been provided with proper documentation nor has he been given a timeframe for when the detail would end. Complainant indicated that the detail has exceeded the one year that is permitted under the rules and regulations of the Agency and the Office of Personnel Management.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. The record indicates that Complainant contacted the EEO Office regarding the instant complaint in order to challenge the Agency's detail of him to the Martinez location from his permanent assignment located in Oakland. We note that the Complainant challenged the detail from November 2008 in the instant complaint when he asserted that the detail was done without the appropriate paperwork. Therefore, we find that, to the extent Complainant is alleging that the detail to the Martinez location in November 2008 was done without regard to Agency and OPM policy, rules and regulations, Complainant has raised that claim in his prior EEO complaint.1
In addition, Complainant asserted that he has not been returned to his permanent position of record as of date. We find that such a claim fails to state a claim. 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. Dept. of the Air Force, EEOC Request No. 05931049 (April 21, 1994). We note that here, Complainant has not presented a harm or loss with respect to a term, condition or privilege of employment.
Further, we note that Complainant alleged that he has been subjected to unlawful retaliation in that his has not been returned to his permanent work assignment. Regarding Complainant's claim of reprisal, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. We find that Complainant has not asserted that the alleged action was reasonably likely to deter him or others from engaging in protected activity.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissal of the compliant pursuant to 29 C.F.R. � 1614.107(a)(1).
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 (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 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 17, 2010
__________________
Date
1 The Commission notes that the Agency dismissed Complainant's prior EEO complaint and the matter was appealed to EEOC. The Commission affirmed the Agency's dismissal in Presser v. Dept. of Veterans Aff., EEOC Appeal No. 0120100408 (Apr. 13, 2010), req. for reconsideration denied, EEOC Request No. 0520100356 (June 30, 2010).
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0120101829
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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