0120072148
08-30-2007
Shaukat H. Syed, Complainant, v. Michael O. Johanns, Secretary, Department of Agriculture, Agency.
Shaukat H. Syed,
Complainant,
v.
Michael O. Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120072148
Agency No. FSIS-2006-02375
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) decision dated February 21, 2007, 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.
Complainant alleged in his complaint that he was subjected to
discrimination based on his religion (Muslim), national origin (not born
in the United States), and reprisal1 for prior protected EEO activity
when he was verbally abused, ignored and denigrated. He also alleged
that the EEO counselor was abusive and did not properly process and
handle his EEO claim.
In letters notifying complainant of right and responsibilities, and of his
right to file a complaint, the EEO counselor characterized the EEO claim
raised with her as complainant's second-level supervisor since November
2004 cursing, yelling at, and disrespectfully and unprofessionally
treating complainant. Thereafter, the agency provided complainant with
the counselor's report. It reiterated the above, with an end date of
March 7, 2006. It explained the claim with alleged incident examples of
the second-level supervisor repeatedly cursing at complainant and once
throwing a piece of paper toward him. It indicated that complainant
raised the examples directly in EEO counseling and in a misconduct
investigation affidavit he gave the counselor.
According to the counselor's report, after advising complainant of the
45-day deadline for contacting an EEO counselor and asking why he waited
more than that, complainant responded that he was trying to give the
second-level supervisor more time to change his behavior.
After receiving the counselor's report, complainant briefly emailed
the EEO counselor that the counselor's report was false and baseless,
and indicated that his claim was based on working conditions and hostile
environment.
The FAD characterized the complaint in the same way as the EEO counselor.
It dismissed the complaint for failure to timely initiate contact with an
EEO counselor. It reasoned that the last alleged incident occurred on
March 7, 2006, and complainant did not initiate EEO contact until July
20, 2006, beyond the 45 calendar day time limit. In addition, the FAD
found that complaint alleged the EEO counselor was abusive and refused to
contact a higher authority in an attempt to resolve the EEO complaint.
While dismissing this matter, it instructed complainant how to raise
his allegations of his dissatisfaction with the processing of his EEO
complaint with the agency.
Around the time the FAD was issued, complainant obtained counsel
and then gave detailed explanations of his disagreement with the
counselor's report. By letter mailed to the agency on February 15,
2007, but received the same day the FAD was issued, complainant rebutted
the counselor's report. In this and subsequent writings, complainant
adamantly claims as follows. He indicates that the incident examples the
EEO counselor used to explain his claim were not raised by him in EEO
counseling. He accurately observes that all these matters were raised
in his misconduct affidavit dated March 31, 2006 [as supplemented on
April 14, 2006]. According to complainant, as best he could recall he
did not give the EEO counselor a copy of the affidavit. He writes that
he gave a copy of the affidavit to the Acting Deputy Director for the
Civil Rights Division in connection with a matter unrelated to his EEO
complaint, and theorizes that the counselor obtained it from the Acting
Deputy Director. Complainant also denies telling the EEO counselor that
he waited to give his second-level supervisor an opportunity to improve
his behavior before initiating counselor contact.
Effective on or about April 30, 2006, complainant was reassigned against
his wishes from the supervisory position of Director, New Technology
Staff, GS-15, to the non-supervisory position of Special Assistant to the
Deputy Assistant Administrator of Office of Policy, Program and Employee
Development, GS-15. With this, he was assigned a much smaller office
with non-executive furniture. According to complainant, in this job he
would go weeks with no work, and his few assignments were at the GS-12/13
levels. Complainant alleged that he was isolated in that he worked with
far fewer people and was cut off from the Director's email listserv.
According to complainant, the above was the grounds of his claim with the
EEO counselor, which he characterizes as current harassment, not the past
matters in his misconduct affidavit. He characterized the claim as being
from April 30, 2006, and continuing forward. See complainant's April 24,
2007, affidavit, page 2.
Specifically, complainant contends that when he contacted the EEO office
by telephone on July 20, 2006, he said that in his current position he
was not given any real work, was left out of office activities, and was
in virtually in no communication with anyone. Complaint contends that
when he was interviewed by the EEO counselor over the telephone on July
24, 2006, he said that he was not used to the extent of his professional
experience, was isolated, and was working in a hostile work environment.
Complainant observes that his EEO complaint cited the incident date as
June 13, 2006, and avers that this was when he had an unsatisfactory
discussion with his first and second level supervisors about his current
working conditions.
In the above correspondence mailed on February 15, 2007, but received on
February 21, 2007, the same day the FAD was issued, complainant, in part,
both laid out the claims "underlying" his complaint and asked to amend
the complaint. Regarding the complaint, complaint raised the reassignment
and his treatment in the new job. He also sought to amend his complaint
to add the claims of learning in December 2006 or January 29, 2007,
that he was denied Federal Executive Institute training and learning on
January 29, 2007 that he was denied Strategic Management Training.2
Complainant indicates his complaint was incorrectly defined by the
agency to include matters occurring before April 30, 2006, which were
all the matters addressed by the FAD. Accordingly, we need not address
the FAD's determination on timeliness.
Based on complainant's descriptions of his discussions with the EEO office
and counselor prior to filing and in connection with his EEO complaint,
we find that he did not raise the reassignment to a non-supervisory
job claim with the EEO counselor. Instead, based on complainant's
descriptions of these discussions, we find that complainant contends
he raised treatment in the new job, i.e., assignments and lack thereof,
being isolated, and vaguely harassment. Given that the complaint simply
makes vague references to verbal abuse, being ignored, and denigrated,
and our above finding that complainant did not previously raise the
reassignment to a non-supervisory position, we decline to construe the
complaint as including the reassignment to a non-supervisory job claim.
We also decline to allow it to be added by amendment since it occurred
months before complainant initiated contact with an EEO counselor and
filed his EEO complaint.
The question is whether the complainant's complaint should be construed
as containing the claims asserted by complainant: in the new job,
complainant was isolated, moved to a small office with non-executive
furniture, was given little work, and the few assignments he received
were at the GS-12/13 level. None of these claims are included in the
counselor's report. Whether the vague complaint should be construed
as including these claims depends on whether complainant raised these
matters with the EEO office and counselor prior to the filing and in
connection with his EEO complaint. On remand, the agency shall secure
affidavits from agency EEO officials regarding whether complainant raised
these matters.
We now turn to complainant's denial of training amendment. It was
filed while the complaint was still pending before the agency,
i.e., prior to the dismissal FAD of February 21, 2007. Moreover, in
light of this decision, the complaint will be pending again before
the agency. If an incident raises a new claim like or related to
the claims raised in the pending complaint, the agency must amend the
complaint to include the new claim. U.S. Equal Employment Opportunity
Commission EEO Management Directive 110 (EEO-MD-110), Chap. 5, �
III.B.2, page 5-11 (November 9, 1999) (available at www.eeoc.gov).
EEO-MD-110 cites an example where there is an investigation of a claim
of denial of developmental assignments and a complainant seeks to amend
the complaint by adding a letter of warning allegedly taken in reprisal
for the developmental assignment complaint. The example instructs that
the letter of warning claim is related to the pending claim because
it grew out of an investigation into that claim. Id. at Example 6.
There is no requirement that the complainant seek EEO counseling on
the amended claim. Id. at B, page 5-9. Accordingly, the agency must
process the amended claim regarding the denial of training.
Finally, the FAD's dismissal regarding complainant's claim of
dissatisfaction with the processing of his complaint is affirmed.
29 C.F.R. � 1614.107(a)(8).
ORDER
The agency is ordered to take the following actions:
I. The agency shall supplement the record with affidavits by officials
in the EEO office with whom complainant communicated before filing his
complaint in connection to thereto (this must include the EEO staff
person complainant identified as having talked to on July 20, 2006, and
the EEO counselor). The affidavits shall address whether complainant
raised the following claims: in his new job from April 30, 2006, onward,
he was isolated, moved to a small office with non-executive furniture,
was given little work, and the few assignments he received were at
the GS-12/13 level.3 The affidavits shall also address complainant's
contentions regarding what he did and did not raise, e.g., whether he
raised the matters in his misconduct affidavit and provided the affidavit
to the EEO counselor,4 any reason he gave for the timing of his initial
contact with the EEO office, and whether complainant raised matters
that were currently occurring as his claims: isolation, not being given
real work, not being used to the extent of his professional experience,
and harassment.
II. Based on complainant's statements and those of the EEO officials,
the agency shall then determine the claims the complaint include, and
then process the complaint under 29 C.F.R. Part 1614.
III. The agency shall then issue a letter accepting or dismissing the
claims.
IV. The agency shall acknowledge receipt of and process complainant's
amended claim that he was discriminated against based on his religion
(Muslim), national origin (not born in the United States), and reprisal
for EEO activity when he learned in December 2006 or January 29, 2007,
that he was denied Federal Executive Institute training and learned
on January 29, 2007, that he was denied Strategic Management Training.
In so doing, the agency shall take into account the instructions on page
4 of this decision on the processing of complaint amendments.
V. The agency must complete the action in item III above and the
acknowledgment letter in item IV above within 60 calendar days after
this decision becomes final.
A copy of the agency's letter accepting or dismissing claims and
acknowledging receipt of the amended claims must be sent to the Compliance
Officer as referenced below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
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 (T0900)
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 (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
August 30, 2007
__________________
Date
1 Complainant did not raise the bases of national origin and reprisal in
his EEO complaint, but his subsequent writings show he is also alleging
discrimination on those bases.
2 On appeal, in both argument and in an affidavit, complainant writes
the amendment also included the reassignment. He writes that he
initially believed the reassignment would be included in prior EEO
claim FSIS-2006-02000, but learned in July 2006 this was not the case.
A close reading of the February 2007, correspondence, however, reveals
that complainant did not characterize the reassignment matter therein
as an amendment, but rather, something already in the complaint.
3 This does not include the claim
4 Regardless of the determination on this matter, however, the claims in
the misconduct affidavit are not part of the complaint because complainant
states it does not include these matters.
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0120072148
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120072148