0120123545
02-28-2013
Raul A. Flores, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Raul A. Flores,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120123545
Agency No. ARCCAD12JUL02663
DECISION
Complainant filed a timely appeal with this Commission from the Agency's undated decision, decision, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Depot Production Manager at the Agency's facility in Corpus Christi, Texas.
The record indicates that, on July 3, 2012, Complainant contacted an EEO Counselor regarding his claim that the Agency subjected him to discrimination on the bases of national origin (Hispanic), sex (male), and age (54) when, on July 2, 2012, he was notified that he was being relocated to another Agency office and was not permitted to have contact with anyone in his division (claim 1). Informal efforts to resolve Complainant's claim was unsuccessful.
On July 17, 2012, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination as alleged above. However, Complainant's formal complaint also alleged that the Agency had discriminated against him concerning the following:
2. on June 25, 2012, Complainant had a conversation with his Director regarding overtime worked by one of his colleagues;
3. on June 12, 2012, Complainant was yelled at by his Director because the same colleague did not follow the instructions of the Director the day before;
4. in May 2012, Complainant's Director used foul language in a meeting;
5. in April 2012, Complainant was given a mid-point review with which he did not agree and was told that he would be placed on a Performance Improvement Plan (PIP);
6. on December 2, 2011, Complainant received a performance rating of "Successful" even though his Director had not met the 120-day requirement to issue the performance rating; and
7. on October 6, 2011, Complainant was counseled because one of his subordinate employees was not meeting his performance goals and could not get along with others.
In its final decision, the Agency dismissed the complaint in its entirety for failure to state a claim in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency found that Complainant failed to demonstrate that he had suffered any harm to the terms and conditions of his employment when he was relocated and advised not to contact anyone in his division. The Agency indicated further that Complainant was relocated pending an investigation being conducted in Complainant's division.
The final decision also found that claims 2 - 7 were not brought to the attention of the EEO Counselor and, therefore, were not counseled and were not like or related to the relocation claim (claim 1) that Complainant discussed with the EEO Counselor. Consequently, the Agency dismissed claims 2-7 pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(2).
The instant appeal followed.
ANALYSIS AND FINDINGS
Claim 1 - 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
In claim 1, Complainant asserts that he was removed from his duties as a division director, relocated and instructed not to contact anyone in his work area during an investigation into an alleged failure to follow proper procedures by one of the areas over which he had some responsibility which purportedly involved some potential flight safety issues. Complainant alleged that other division directors routinely did not adhere to these standard procedures without any action being taken against them. The record does not indicate how long the investigation took, when and whether Complainant was restored to his position, or whether Complainant was subjected to any disciplinary or other adverse action as a result of the investigation.
Complainant's allegations of disparate treatment that resulted in the removal of his managerial duties and reassignment to another location for an unknown period of time is sufficient to state a present harm or loss with respect to a term, condition or privilege of employment. Accordingly, the Agency erred in dismissing this claim without further investigation and processing. We will remand this claim for further processing by the Agency.
Claims 2-7 - Failure to Bring to the Attention of EEO Counselor
With respect to claims 2-7, the regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an EEO counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or complaint is "like or related" to the original complaint if the later claim or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Scher v. U.S. Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990). We find that the Agency properly dismissed claims 2-7 on the grounds that Complainant failed to raise the matter with an EEO Counselor. In addition, Complainant has not shown that these claims are like or related to the other matter he raised during counseling.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision dismissing claim 1 of the instant complaint and REMAND it to the Agency for processing in accordance with the following Order. We AFFIRM the Agency's dismissal of claims 2-7.
ORDER (E0610)
The Agency is ordered to process the remanded claim (1) in accordance with 29 C.F.R. � 1614.108 et seq. 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 (K0610)
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 (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 (T0610)
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 (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
February 28, 2013
__________________
Date
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0120123545
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123545