Shaukat H. Syed, Complainant,v.Michael O. Johanns, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionAug 30, 2007
0120072148 (E.E.O.C. Aug. 30, 2007)

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

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0120072148