Paul Padda, Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency.

Equal Employment Opportunity CommissionDec 9, 2011
0120113262 (E.E.O.C. Dec. 9, 2011)

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