01A34116
10-27-2003
Gail A. Rodriguez-Reyes, Complainant, v. Tom Ridge, Secretary, Department of Homeland Security, Agency.
Gail A. Rodriguez-Reyes v. Department of Homeland Security
01A34116
10-27-03
.
Gail A. Rodriguez-Reyes,
Complainant,
v.
Tom Ridge,
Secretary,
Department of Homeland Security,<1>
Agency.
Appeal No. 01A34116
Agency No. 03-0100
DECISION
On May 24, 2002, complainant, a Senior Customs Inspector, GS-11, sought
EEO counseling. Her complaint was joined with a class complaint on
August 13, 2002. On November 4, 2002, an EEOC Administrative Judge
(AJ) recommended that the agency reject the class complaint. Thereafter,
on November 26, 2002, the Treasury Department implemented the decision
of the AJ. Complainant's complaint became an individual complaint
alleging that she was subjected to discrimination on the basis of age
(DOB: 05/11/47) when:
1) on March 28, 2002, the Assistant Port Director made remarks to
different people stereotyping �older inspectors� as being less productive
than younger inspectors;
2) on unspecified dates and years, she was denied training and
appointment to preferred positions that had promotion potential to
supervisor positions;
3) on an unspecified date and year, the Assistant Port Director selected
younger inspectors for training and appointment to preferred positions;
4) on unspecified dates and years, the Assistant Port Director has on
several occasions made references to his seizures and comparing them to
seizures of �older inspectors;�
5) after September 11, 2001, the Assistant Port Director reduced the
work crew from six to four inspectors;
6) on an unspecified date and year, the complainant applied to be the
FP&F officer and she was not considered; and
7) on unspecified dates and years, she applied for supervisory positions
in Brownsville, TX, Houston, TX, and New Orleans, LA, and she was not
selected.
Because many of the instances cited in the class complaint were not
specific as to when they occurred, by letter dated March 4, 2003, the
agency asked complainant to provide the specific dates of the incident.
Thereafter, complainant indicated that she did not keep record dates of
the specific incidents contained in the complaint because she was not
aware discrimination was taking place. In its final decision, dated May
28, 2003, the agency dismissed all seven allegations on the grounds that
they failed to state a claim.
Claims (1) and (4)
The Commission has consistently held that a remark or comment
unaccompanied by concrete action is not a direct and personal deprivation
sufficient to render an individual aggrieved. Henry v. USPS, EEOC Request
No. 05940695 (February 9, 1995). There is no evidence in the record that
complainant was subjected to any adverse action or disciplinary action
as a result of the alleged comments at issue. Accordingly, we affirm the
dismissal of claims (1) and (4) pursuant to 29 C.F.R. � 1614.107(a)(1).
Claims (3) and (5)
To state a claim, a complainant must allege a present harm or loss
on a protected basis 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). A complainant
cannot pursue a generalized grievance that members of one protected
group are afforded benefits not offered to other protected groups,
unless they further allege some specific injury as a result of the
alleged discriminatory practice. See Crandall v. Department of Veterans
Affairs, EEOC Request No. 05970508 (September 11, 1997) (claim that
nurse practitioners in one unit received more favorable treatment
than nurse practitioners in other units was a generalized grievance).
In claims (3) and (5), complainant generally alleges harm in the denial
of training, promotions and the make-up of a work crew, but fails to
identify any particular individual harm that she suffered. Therefore,
she has raised a generalized grievance, and fails to state a claim.
Claims (2), (6) and (7)
The Commission finds that the complainant states a claim under the EEOC
regulations with regard to claims (2), (6) and (7). She has provided
enough specificity to establish that she suffered a harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Accordingly, the dismissal of claims (2), (6) and
(7) is REVERSED. These claims are REMANDED for processing.<2>
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___10-27-03_______________
Date
1The complaint herein was originally
filed against the Department of Treasury, U.S. Customs Service.
The U.S. Customs Service is now a component of the Department of Homeland
Security, Border and Transportation Security Directorate.
2Notwithstanding our remand of claims (2), (6) and (7) for processing,
we are not ruling on whether complainant sought EEO counseling on
these matters in a timely fashion given the lack of evidence in the
record on this issue. See 29 C.F.R. � 1614.107(2). Subsequently,
if the agency determines that it will dismiss claims (2), (6) and (7)
on the grounds of untimely EEO counselor contact, it should, prior to
dismissal, provide complainant with an opportunity to establish that
said claims were raised in a timely fashion or that there is an adequate
justification for extending the time limitation period in her case. See
29 C.F.R. � 1614.604(c).