0120113262
12-09-2011
Paul Padda, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency.
Paul Padda,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Executive Office of the U.S. Attorneys),
Agency.
Appeal No. 0120113262
Agency No. USA201100029
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated May 18, 2011, 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
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Attorney at the Agency’s United States Attorney's Office for
the District of Nevada (USAO).
On December 17, 2010, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination on the bases of race (Asian),
national origin (Indian), and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964, when in April 2010,
USAO management officials: 1) referred him to the Office of Professional
Responsibility (OPR); and (2) transferred him to the Civil Division.
Further, on February 2, 2011, Complainant requested that his formal
complaint be amended to add an allegation of an ongoing discriminatory
hostile work environment. In support of this claim, he alleged that: 3)
on or about December 7, 2010, another Assistant U.S. Attorney revealed
to him that he knew that he (Complainant) was going to be transferred to
the Civil Division as "punishment;" 4) on or about December 20, 2010, his
secretary in the Civil Division informed him that management officials
were making inquiries about his whereabouts and daily schedule; 5) on
or about December 20, 2010, he had a conversation with the Civil Chief
regarding the state of the office; 6) on or about December 20, 2010,
he submitted his resignation to the U.S. Attorney, who allegedly did not
respond to or acknowledge his resignation; 7) on or about December 21,
2010, someone on the senior management team made him an “offer”
that if he took off the next couple of weeks prior to the effective
date of his resignation, he would still be paid by the office; and 8)
after his departure from the USAO, management officials continued to
disparage him through “defamatory statements and half-truths.”
In its final decision, the Agency determined that Complainant's complaint
must be dismissed because it is cumulative of the claim in a previous
case, Agency No. USA-2010-00493, which was withdrawn by Complainant on
July 20, 2010, at the end of the counseling period. Records show that
in USA-2010-00493 the issues were whether USAO management officials
discriminated against Complainant based upon his race and national
origin, and retaliated against him when, in April 2010: (1) he was
transferred to the Civil Division; and (2) he was referred to OPR.
According to the Agency, the claims in the instant case (USA-2011 00029)
are indistinguishable from the claims previously withdrawn at the informal
stage (USA-2010-00493). Therefore, the Agency dismissed Complainant’s
current complaint because it "states the same claim that is pending
before or has been decided by the Agency" in case USA-2010-00493.
Concerning the additional claims raised by Complainant’s February
2011 amendment to his formal complaint, the Agency concluded that those
allegations must also be dismissed for failure to state a claim.
The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant essentially contends that his expanded formal
complaint is not duplicative of his initial compliant in USA-2010-00493,
and the continued retaliatory actions of Agency management warrant an
investigation in this matter.
In response, the Agency maintains that Complainant has not alleged any
adverse action that the USAO has taken against him after July 20, 2010,
when he withdrew his previous complaint on the same matters. Moreover, the
Agency contends that the events after July 20, 2010, are not sufficiently
severe or pervasive to amount to discriminatory harassment. In fact,
the Agency argues, some of the events that occurred after July 20, 2010,
are general management responsibilities, such as asking the whereabouts of
an employee. With regard to his resignation, the Agency contends that the
resignation was voluntary and there is no claim to suggest the contrary.
Nor, according to the Agency, does Complainant provide any specific,
disparaging remarks or comments that USAO management officials purportedly
made after his departure.
The Agency also asserts an alternative rationale for dismissal of
Complainant's earlier claims. Although not cited as a basis in the
initial decision dismissing this complaint, the Agency argues that
Complainant's efforts to include his referral to OPR, reassignment, and
other actions associated with those actions are also properly rejected
as untimely raised with an EEO counselor.
In summary, the Agency maintains that its original dismissal of
Complainant's complaint is proper because the claims in Complainant's
current complaint were the bases of a previously filed complaint (Agency
No.USA-2010-00493), which was voluntarily withdrawn, and are untimely.
Furthermore, the Agency contends that Complainant's hostile work
environment claim and the events after July 20, 2010, were properly
dismissed because they fail to state a claim.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that
the Agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission. Concerning
Complainant's original claims, 1 and 2, we find that Complainant's
complaint states the same claims that formed the basis of his prior
complaint (USA-2010-00493), which he chose to withdraw during the informal
process. The Commission has held that once a complainant has withdrawn an
informal complaint, absent a showing of coercion, the complainant may not
reactivate the EEO process by filing a formal complaint on the same issue.
See Allen v. Department of Defense, EEOC Request No. 05940168 (May 25,
1995). Complainant has not established coercion in the instant matter.
Therefore, the Agency correctly dismissed claims 1 and 2.
The Agency also dismissed Complainant’s subsequent amendment
alleging a hostile work environment for failure to state a claim.
Commission regulations require an agency to accept a claim from an
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). When the complainant
does not allege facts showing he or she is aggrieved within the meaning
of the regulations, the agency shall dismiss the complaint for failure
to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1).
Where a complaint does not challenge an agency action or inaction
regarding a specific term, condition or privilege of employment, a claim
of harassment is actionable only if, allegedly, the harassment to which
Complainant has allegedly been subjected was sufficiently severe or
pervasive to alter the conditions of Complainant’s employment. Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). However, the Commission has found that isolated remarks or comments
unaccompanied by a concrete agency action usually are not a direct and
personal deprivation sufficient to render an individual aggrieved for
the purposes of Title VII. See Backo v. U.S. Postal Serv., EEOC Request
No. 05960227 (June 10, 1996); Henry v. U.S. Postal Serv., EEOC Request
No.05940695 (Feb. 9, 1995).
With respect to all subsequent allegations amended to Complainant's
formal complaint, we affirm the Agency determination that Complainant
fails to state a claim of hostile workplace harassment. With regard to
Complainant’s resignation, the record does not show and Complainant
does not argue that his resignation was under a constructive discharge.
In addition, Complainant does not provide any specific, disparaging
remarks or comments that USAO management officials purportedly made
after his departure or allege that they had any negative impact on him.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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. 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 (Z0610)
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
December 9, 2011
__________________
Date
2
0120113262
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113262