0120100384
04-21-2010
Oleg Barer, Complainant, v. Paul F. Prouty, Acting Administrator, General Services Administration, Agency.
Oleg Barer,
Complainant,
v.
Paul F. Prouty,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120100384
Agency No. 09R9PBSSF14
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 2, 2009, 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.
The record indicates that on May 27, 2009, complainant contacted
the agency's EEO office when he was issued a Notice terminating his
employment with the agency effective May 22, 2009. Complainant met with
the EEO Counselor regarding the termination. In support of his claim
of termination, complainant indicated that management did not believe he
had a command of the English language. Therefore, complainant believed
that his removal was based on a discriminatory animus.
When the matter was not resolved informally, complainant filed his formal
complaint on August 18, 2009. In his complaint, complainant alleged
that he was subjected to discrimination on the bases of national origin
(Russian) and sex (male) when, starting in January/February 2009, he
received a number of comments from his supervisor regarding his accent,
comments were received about his national origin.
On September 10, 2009, the agency requested more detailed information
regarding complainant's compliant including dates or timeframes
regarding his complaint. Complainant responded on September 24, 2009.
In his response, complainant indicated some concerns he had with the EEO
Counselor's report. Complainant elaborated on the concerns and issues
his supervisor had with his accent and that this issues did not occur
prior under different management. Complainant noted in his response
that he believed that the events that led to his termination were all
part of a set up and that the supervisor discriminated against him based
on his accent and national origin. Complainant stated that he could not
give any more specific dates beyond the January/February 2009 timeframe.
The agency dismissed the complaint citing 29 C.F.R. � 1614.107(a)(1)
and � 1614.107(a)(2). The agency determined that the complaint was
based on comments made about complainant's accent and writing skills, not
the termination. The agency noted that complainant was asked to provide
more detailed information such as dates and timeframes which complainant
responded to on September 24, 2009. Based on the information, the agency
found that complainant failed to provide any specific incidents in which
the supervisor commented on complainant's accent or writing skills, he
also failed to provide any timely dates which would have occurred within
forty-five (45) calendar days of the date he contacted the EEO Counselor.
As such, the agency dismissed the matter as untimely raised with the
EEO Counselor. Further, the agency indicated that complainant's claim
of "comments" was too vague and insufficient to define his complaint.
As such, the agency also dismissed the matter pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim.
Upon review of the record, including the pre-complaint form, EEO Counselor
report, complainant's formal complaint and email dated September
24, 2009, we find that the agency improperly defined the complaint.
Clearly, complainant alleged discrimination on the bases of sex (male) and
national origin (Russian) when, effective May 22, 2009, he was terminated.
The statements provided by complainant clearly were given as support for
his claim of discrimination when he was terminated. Using the claim as
indicated by the Commission, we shall review the agency's dismissal of
the matter.
Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in �1614.105, �1614.106 and
�1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the
Commission to extend the time limit if the complainant can establish that
complainant was not aware of the time limit, that complainant did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence complainant
was prevented by circumstances beyond his control from contacting the
EEO Counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
Here, complainant was terminated effective May 22, 2009. He contacted the
EEO Counselor on May 27, 2009, well within 45 calendar days. As such,
we find that the agency's dismissal of the complaint pursuant to 29
C.F.R. � 1614.107(a)(2) was not appropriate.
Failure 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. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). Here, complainant clearly asserted that
he was terminated effective May 22, 2009 based on his sex and/or national
origin. Upon review, we find that complainant clearly alleged that he has
been harmed with respect to a term or condition of employment for which
there is a remedy. Therefore, we find that the agency's dismissal of
the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) was not appropriate.
CONCLUSION
Accordingly, we VACATE the agency's final decision and REMAND the matter
for further processing in accordance with the ORDER below.
ORDER (E0408)
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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 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 (R0408)
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 (Z1008)
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
April 21, 2010
__________________
Date
2
0120100384
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100384