0120080190
03-04-2008
John D. Monachino, Complainant, v. Sheila C. Bair, Chairman, Federal Deposit Insurance Corporation, Agency.
John D. Monachino,
Complainant,
v.
Sheila C. Bair,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 0120080190
Agency No. FDICEO-070032
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD) dated
September 17, 2007, 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., Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his complaint,
complainant alleged that he was subjected to discrimination based on
disability and age (born in 1951), and was subjected to reprisal for
prior protected EEO activity when:
1. by letter dated June 5, 2007, he was informed by the agency's Office of
Diversity and Economic Opportunity (an EEO office) that his whistleblower
allegations raised as part of a prior EEO complaint were not addressed,
but should be raised with the Office of Special Counsel,
2. on June 22, 2007, his application for the leave transfer program was
not approved allegedly because he did not attach the certification from
a health care provider,
3. on June 26, 2007, (a) his requests for advanced sick leave, variously
dated between April 26, 2007 and June 26, 2007, were denied, and (b)
he was directed to review an information technology (IT) examination
report he did not possess,
4. on June 29, 2007, an agency manager rejected complainant's offer
to meet with him, along with complainant's union representative, to
discuss outstanding matters like complainant's duties, leave requests,
and application for the leave transfer program,
5. as of July 2, 2007, an agency manager had not approved complainant's
request for official time for June 28, 2007, to review and make
corrections to his statements to an EEO investigator regarding two
previous EEO complaints,
6. on July 3, 2007, the agency disagreed with several of complainant's
travel vouchers,
7. on July 5, 2007, the agency denied complainant's advanced sick leave
requests, variously dated between June 25, 2007 and July 3, 2007,
8. as of July 11, 2007, (a) an agency manger had not confirmed or
approved complainant's application for an Expression of Interest (EOI)
detail to Washington, D.C., (b) nor approved his request to volunteer
for an assignment for an interagency TSP examination,
9. on July 17, 2007, an agency manager informed complainant that he
did not have a right to be represented during a meeting to discuss work
assignments and refused to allow his attorney to attend those discussions,
and
10. on July 31, 2007, the agency issued complainant a letter ordering him
to return to work by August 6, 2007, or non-disciplinary action would
be taken to remove him from federal service if his medical condition
prevented him from returning to work or maintaining a regular work
schedule.
The FAD dismissed the entire complaint for abuse of process. 29 C.F.R. �
1614.107(a)(9). It also dismissed all the claims on various alternative
grounds. In Monachino v. Federal Deposit Insurance Corporation, EEOC
Appeal No. 0120073693 (February 15, 2008), the Commission reversed the
agency's dismissal of complainant's fourth, fifth, and sixth complaints
for abuse of process. The seventh complaint is before us now. Things
have not changed sufficiently for us to reach a different conclusion now.
The dismissal for abuse of process is reversed.
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) requires the dismissal of a
claim that alleges dissatisfaction with the processing of a previously
filed complaint. The FAD's dismissal of claim 1 on this ground was
proper and is affirmed.
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. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra.
The FAD dismissed claim 2 for failure to state a claim for not rising
to the level of harassment. We find claim 2 fails to state a claim
because complainant was not harmed. While approval of his June 15,
2007, application for the leave transfer program was delayed on the
stated grounds of being incomplete, it was approved on July 16, 2007.
Complainant has not shown that he was harmed by this delay, nor do we
find the delay would reasonably likely deter EEO activity. The dismissal
of claim 2 is affirmed.
The FAD dismissed claims 3(a) and 7 for failure to state a claim for
not rising to the level of harassment. The FAD notes that on July 16,
2007, the agency approved complainant's request for advanced sick leave,
up to the maximum permitted, 240 hours. This approval resulted in
complainant being on approved advanced sick leave from July 9 through
12, stopping with its total depletion. Immediately thereafter, for leave
requested that was exhausted, he was placed on leave without pay (LWOP).
However, for much of the time covered by claims 3(a) and 7, the denial
of advanced sick leave resulted in absence without official leave (AWOL)
charges.1 This demonstrates a harm, and as such the FAD's dismissal of
claims 3(a) and 7 is reversed.
Without specific discussion, the FAD dismissed claim 3(b) for failure to
state a claim for not rising to the level of harassment. In opposition
to complainant's appeal, the agency argues complainant was not harmed.
We agree. Complainant does not claim that he was in any way disciplined
or negatively evaluated as a result of this matter. The FAD's dismissal
of claim 3(b) is affirmed.
The FAD dismissed claims 4 and 9 failure to state a claim for not rising
to the level of harassment. Claim 4 fails to state a claim because
it regards union representation outside the EEO complaint process.
Such a matter is within the jurisdiction of the grievance process, not
the EEO process. Claim 9 fails to state a claim because complainant has
not shown harm, nor that it would reasonably likely deter EEO activity.
The FAD dismissed claim 5 for failure to state a claim. Citing Napoli
v. United States Postal Service, EEOC Appeal No. 01A404598 (February 28,
2001), the agency reasoned that an allegation of a denial of official
time should not be processed in accordance with 29 C.F.R. �
1614.108 (investigation of complaints), since the focus is not on the
motivation, but rather the justification for the denial of official
time. While Napoli found that a 29 C.F.R. � 1614.108 motivation based
investigation was not required, it still ordered an investigation to
determine whether the official time was properly denied. Here, a review
of the time and attendance record shows that complainant received 8
hours of official time on June 28, 2007, as requested. Accordingly,
this matter is dismissed because there is nothing left to investigate.
The FAD dismissed claim 6 for failure to state a claim for not rising
to the level of harassment. Discriminatorily denied travel vouchers,
however, would result in financial loss, and hence this matter states
a claim. The FAD's dismissal of claim 6 is reversed.
The FAD dismissed claim 8 for failure to state a claim for not rising to
the level of harassment. Regarding claim 8(a), the agency explained that
complainant was initially approved for participation in the EOI program,
and subsequent requests for approvals do not require action because the
participation is already approved. This contention is corroborated by
agency written policy. The agency explained that a supervisor called
upon to lose someone to a detail may deny a position change, but this
did not occur. The alleged discriminating management official would
have been in the losing position if a gaining office wanted the detail.
Complainant does not contest any of this. Given this, we find claim 8(a)
fails to state a claim because complainant has not shown how he was harmed
by not receiving separate approval or confirmation of his new EOI.
Regarding claim 8(b), the agency explained that complainant was not
rejected for the volunteer assignment; rather, it was not filled on the
ground of lack of need/availability, and was delayed to November 2007.
The Commission finds that this claim fails to state a claim. It does
not involve a direct and personal loss or harm to complainant and thus,
complainant was not aggrieved by the agency's failure to establish
the volunteer position earlier. A generalized grievance shared by
all or a substantially large class of individuals is not sufficient to
establish standing. Lohman v. General Services Administration, EEOC
Appeal No. 01942824 (January 23, 1995).
The FAD dismissed claim 10 for failure to state a claim for not rising
to the level of harassment. In opposition to complainant's appeal,
the agency argues that it should be dismissed as a proposal to take an
action, i.e., removal.2 We find that an order to return to work or be
removed states a claim of harm. Further, this was not a proposed removal.
The FAD's dismissal of claim 10 is reversed.
On appeal, complainant asks that this complaint be consolidated with
his other pending complaints. If complainant wishes his complaint to be
consolidated with complaints pending before an EEOC Administrative Judge
(AJ), the AJ has discretion to do so upon a motion by the complainant.
29 C.F.R. � 1614.606. We decline to order the agency to consolidate
this case with others pending before it because we do not know the stage
of processing they will be in when this decision is final. However,
the agency is reminded of the dictates of 29 C.F.R. �
1614.606.
ORDER
The agency is ordered to process claims 3(a), 6, 7 and 10 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
March 4, 2008
__________________
Date
1 Some of the above information was in time and attendance documentation
submitted by the agency in opposition to complainant's appeal.
This documentation is part of the record.
2 Monachino v. Federal Deposit Insurance Corporation, initial decision by
the Merit Systems Protection Board (MSPB) in NY-0752-08-0023-I-1, 2008
WL 352152 (Personnet) (January 11, 2008), reflects that complainant was
removed effective September 21, 2007. The initial decision dismissed
complainant's appeal without prejudice to his right to refile the appeal
within 30 days of his receipt of a final decision by the Office of
Personnel Management denying his application for disability retirement
or by November 28, 2008, whichever is earlier.
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0120080190
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120080190