Manuel Rodriguez, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionMay 23, 2007
0120065177 (E.E.O.C. May. 23, 2007)

0120065177

05-23-2007

Manuel Rodriguez, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.


Manuel Rodriguez,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 01200651771

Agency No. HS06ICE01227

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated August 23, 2006, 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. Upon

review, the Commission finds that complainant's complaint was improperly

dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state

a claim. In his complaint, complainant alleged that he was subjected

to discrimination on the basis of reprisal for prior protected EEO

activity under Title VII of the Civil Rights Act of 1964 when on March 29,

2006, while he was recuperating from surgery for a work related injury,

complainant received a telephone call from a supervisor who threatened

to come to his home to serve him with a thirty-day suspension letter.

In its final decision, the agency indicates that the threatened action

never occurred. Specifically, the agency states that the supervisor

involved in the incident on March 29, 2006 never went to complainant's

home and complainant was never served with a suspension document.

The agency further contends that complainant has not shown an injury to

a term, condition or privilege of his employment in that he was never

"disciplined, received less pay or, or suffered any other injury as a

result of the threatened action."

A review of the record discloses that complainant returned to work on

June 19, 2006 and on that same day, correspondence dated April 27, 2006

proposing to suspend complainant for the unauthorized use of a government

cellular telephone was received at complainant's residence. Thereafter,

the record indicates that complainant was issued a Notice of Suspension

dated July 24, 2006 for 14 calendar days for the unauthorized use of a

cellular telephone. The Notice indicates that complainant's suspension

would be effective August 6, 2006 through August 19, 2006.

We note here that the record contains evidence that following his initial

contact of an EEO Counselor regarding the agency's alleged threat on

March 27, 2006 to come to his home to serve a 30 day suspension, the

complainant again contacted an EEO Counselor on July 17, 2006 regarding

the agency's proposal to suspend received at his residence on June

19, 2006. The record does not indicate however, whether complainant

filed a formal complaint regarding the agency's proposal or the eventual

suspension which was issued on July 24, 2006. Complainant was sent his

notice of final interview on August 5, 2006. After careful review of

the record, the Commission finds complainant's claims regarding the his

supervisor's telephone call and threat to suspend are subsumed with the

agency's proposal and the actual suspension claims in his later complaint.

The agency should consolidate the complaints.

After review of the record herein, the Commission finds that complainant

has shown an injury or harm to a term, condition, or privilege of

employment for which there is a remedy. See Diaz v. Department of the

Air Force, EEOC Request No. 05931049 (April 21, 1994). We note that when

a complaint is filed on a proposed action and the agency subsequently

proceeds with the action, the action is considered to have merged with

the proposal. See Seigel v. Department of Veterans Affairs, EEOC Request

No. 05960568 (October 9. 1997).

Accordingly, the agency's final decision dismissing complainant's

complaint is reversed. The complaint is hereby remanded to the agency

for further processing and consolidation with his later complaint dealing

with the proposed suspension and suspension in accordance with this

decision and the Order below.

ORDER (E0900)

The agency is ordered to process the remanded claims for consolidation

with his later complaint 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 (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. 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 filed your appeal with the

Commission. 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. 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

May 23, 2007

__________________

Date

1 Due to a new data system, this case has been redesignated with the

above referenced appeal number.

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2

0120065177

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

5

0120065177