01975087
03-24-2000
Fayez Hanna, Complainant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.
Fayez Hanna v. Department of Labor
01975087
March 24, 2000
Fayez Hanna, )
Complainant, )
)
v. ) Appeal No. 01975087
) Agency No. 6-11-075
Alexis M. Herman, )
Secretary, )
Department of Labor, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency erred, in part, in its May 27,
1997 decision dismissing a portion of Complainant's complaint for
failure to state a claim and untimely EEO counselor contact, pursuant
to the provisions of 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
and hereinafter referred to as 29 C.F.R.�1614.107(a)(1) and (2)).<1>
Although direct appeals of decisions partially dismissing a complaint are
no longer permissible under the regulations revised on November 9, 1999,
the agency has informed the Commission that the remainder of the complaint
is not pending before the agency or an Administrative Judge. Therefore,
we shall consider the instant appeal because there are apparently no
remaining claims from the instant complaint pending anywhere in the
administrative EEO process.
The record shows that Complainant sought EEO counseling on March 22, 1996,
alleging that he had been discriminated against on the bases of race,
color, national origin, religion, age and physical disability when: (a)
he was denied annual leave; (b) he was subjected to mandatory overtime
on the weekend without being granted credit hours or compensatory time;
(c) he was given make-work assignments; (d) he was not provided office
space commensurate with his grade; (e) he was not provided with clerical
and technical assistance; and, (f) his supervisor did not inform him
about official policies such as furlough procedures.
On May 17, 1996 Complainant filed a formal complaint of discrimination
alleging that he had been discriminated against on the bases of race,
color, national origin, religion, age, physical disability and reprisal
for prior EEO activity.
By letter dated June 4, 1996, the agency accepted the following issues
for investigation:
(1) Complainant's supervisor denied him compensatory time for working
during the weekend (February 24 & 25, 1996);
(2) On March 8, 1996, Complainant's supervisor denied approval of
Complainant's three-day leave request;
(3) Complainant's supervisor has not provided him with an office
commensurate with his grade;
(4) Complainant's supervisor has denied him clerical support; (5)
Complainant's supervisor failed to inform him of official policy on
the furlough.
By letter dated June 13, 1996, Complainant requested "the addition of
the following issues" to the formal complaint:
(a) since March 1995, and up to the present time, his supervisor continues
to "idle" him;
(b) his supervisor continued to make him work on a made-up assignment
created by JM, who was found by the court to have discriminated against
Complainant;
(c) supervisor continued to displace Complainant and made him occupy an
office outside the premises of the Directorate of Health Standards;
(d) supervisor continued to refuse returning Complainant to his official
office space and continued to have several members of lower ranks occupy
Complainant's official office space;
(e) supervisor denied Complainant's rights to return to his official
duties, responsibilities and authority, as the Director of the Office
of Risk Reduction Technology;
(f) supervisor attempted to compel Complainant to perform clerical duties
(typing) for which he had no training or experience, and which were
incompatible with his position description, rank and federal pay;
(g) supervisor designated an artificial deadline to complete an indexing
assignment of over 11,000 pages, in an attempt to accuse Complainant
of failing to meet the established deadline;
(h) up to June 13, 1996, the artificial assignment, for which
the artificial deadline was established in January, has not been
materialized;
(i) although Complainant was the person who provided to the supervisor
with the suggestion and protocol of proceeding with the negotiated
rulemaking for the 1.3 - Butadiene project, he denied any credit to
Complainant and assigned the project to other staff members, which
"yielded to wasting over three years of government resources"; and
(j) supervisor continued to make both oral and written degrading and
insulting remarks against Complainant.
By letter dated May 27, 1997, the agency amended its June 4, 1996
acceptance letter and included two additional claims to be part of
its investigation of Complainant's complaint. The additional accepted
issues are: (1) Complainant received an artificial deadline in January
1996, to complete an indexing assignment of over 11,000 pages that has
not been materialized to date;<2> and, (2) Complainant was accused of
failing to meet the established deadline on the indexing assignment.
In its letter dated May 27, 1997, the agency also dismissed the portion
of Complainant's complaint that was identified in his June 13, 1996
correspondence to the agency and identified as claims (a) - (f), and
claims (h) - (j). It is the dismissal of these claims that is the
subject of the instant appeal.
Claim (a) was dismissed for failure to state a claim and untimely EEO
counselor contact. Claims (b), (e), (i) and (j) were dismissed after
the agency found that they had not been brought to the attention of the
EEO counselor during the inquiry of Complainant's informal complaint.
Claims (c) and (d) were dismissed by the agency on the grounds the
matters raised therein had already been accepted as claim (3) in the
agency's June 4, 1996 acceptance letter. Claim (f) was dismissed on
the grounds that it had already been accepted for investigation as claim
(4) in the June 4, 1996 acceptance letter.
A review of the record persuades the Commission that the agency properly
dismissed claims (b), (c), (d), (e), (f), (i) and (j). However, we
find that the agency erred in its dismissal of claim (a). In claim
(a). Complainant claims that since March 1995, his supervisor causes
him to be "idle". Complainant claims that instead of providing him
assignments and keeping him busy, his supervisor prevents Complainant
from being engaged in work activities. We find that this is sufficient to
state a claim under EEOC Regulations because Complainant has claimed that
he has suffered a harm or loss affecting a term, condition or privilege
of his employment. See Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). Moreover, Complainant claims that the
situation in question started in March 1995, and has been ongoing up
the period when complainant initiated EEO Counselor conact. Given the
circumstances of this case, we therefore determine that Complainant's
initial EEO Counselor contact was timely with respect to claim (a).
Accordingly, we AFFIRM the dismissal of claims (b), (c), (d), (e),
(f), (i) and (j). The dismissal of claim (a) is REVERSED. Claim (a)
is REMANDED for further processing in accordance with this decision and
applicable regulations.
ORDER (E1199)
The agency is ORDERED to process the remanded claim (claim (a)) 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 an
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, 37,659-60 (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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
March 24, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________ __________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1 On 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.
2 This claim had been identified as claim (g) in Complainant's June 13,
1996 letter.