0120093128
01-13-2010
Wayne L. Louie, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Wayne L. Louie,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 0120093128
Hearing No. 480200800626X
Agency No. EEODFS060046F
DECISION
On July 22, 2009, complainant filed an appeal with the Equal Employment
Opportunity Commission (EEOC or Commission) from the agency's June 24,
2009 final order concerning his equal employment opportunity (EEO)
complaint alleging 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. The appeal is deemed timely and is accepted pursuant to
29 C.F.R. � 1614.405(a).
ISSUES PRESENTED
Whether complainant was subjected to harassment due to hostile work
environment on the basis of reprisal, when:
1. since February 3, 2006, he has had to engage in check-in/check-out
procedure every time he conducted union business;1
2. on March 14, 2006, he was placed on absent without leave (AWOL)
status for failing to follow the check-in/check-out procedure;
3. on or about April 28, 2006, his designated representative, an attorney
and agency employee, was denied official time to represent him in his
complaint;
4. on or about July 17, 2006, management interfered with a conversation
he had, while on break, about filing an appeal with the U.S. Court of
Appeals; thereafter his manager accused him of taking multiple breaks;
5. on an unspecified date in 2006, he was denied counseling from his
representative;2
6. on an unspecified date in 2006 he was put on leave without pay; and
7. on November 20, 2006, his access to Internal Revenue Service (IRS)
internet was removed.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Internal Revenue Agent at the agency's Internal Revenue Service
facility in Glendale, California.
He filed a complaint on or about May 4, 2006, as amended, alleging the
above claims. The agency conducted an investigation, and complainant
requested a hearing before an EEOC Administrative Judge (AJ). The AJ
made a decision without a hearing. She procedurally dismissed claims 1
and 6, and found no discrimination on the remaining claims. The agency
then issued a final order implementing the AJ's decision.
On claim 1, the AJ found that complainant filed a grievance prior
to filing his EEO complaint on being required to check-in/check-out.
The union invoked arbitration on February 23, 2006. In finding that the
collective bargaining agreement (CBA) allows claims of discrimination, the
AJ relied on complainant's statement in his deposition that an individual
may file a grievance through the union alleging discrimination.
The AJ found no discrimination on claim 2 because the record showed
complainant was not charged AWOL on March 14, 2006, and he had no
evidence to the contrary. Agency time keeping records show complainant
was designated as being on union time that day.
Turning to claim 3, the AJ found that complainant's request for his
representative to receive official time was not substantiated because the
record contained no documentation supporting the claim. The AJ noted that
the portion of the investigative file cited by complainant to support the
claim was unrelated to official time. Complainant submitted voluminous
papers for inclusion in the investigative file. Upon a close review
of the record, we found the supporting documentation at investigative
file (IF) pp. 344--347. Specifically, by email dated April 24, 2006,
complainant's representative requested six hours of official time
to assist complaint in preparing and filing a formal complaint.3 He
explained that this time included collecting information for a future
EEO investigation and hearing and writing a legal brief. On April 28,
2006, the representative's supervisor approved only three hours of
official time, finding that was sufficient to prepare the complaint
and no brief was yet required. The representative claims that he spent
over nine hours preparing the complaint and brief. The only claim in
the complaint filed on May 4, 2006, was claim 1.
In finding no discrimination on claim 4, the AJ pointed to undisputed
evidence that the manager who interrupted the conversation was not
complainant's manager, and he accused complainant's representative of
taking multiple breaks, not complainant. Complainant conceded that he
was allowed to finish his conversation. IR, p. 136.
Regarding claim 6, the record shows complainant was placed on LWOP
on November 13, 2006, because he was suspended that day. The AJ
dismissed claim 6 on the grounds that complainant filed a grievance on
the suspension.
In finding no discrimination on claim 7, the AJ pointed to undisputed
evidence that employees who are suspended automatically lose access to
the IRS internet service, and once complainant notified management it
promptly moved to get it restored. The service was promptly restored.
On appeal, on claim 1, complainant argues that the union invoked the
grievance process, not him. On claim 2, complainant claims he was
threatened with and placed on AWOL. On claim 3, he now accurately
points to the portion of the record relevant to the claim. On claim 4,
complainant avers he was denied time with his representative. On claim 6,
complainant does not refer to the AJ's finding, rather, he now indicates
it regards him being threatened with three days of LWOP in connection
with an August 28, 2007, letter proposing to suspend him for three days.
On claim 7, complainant argues that the delay in restoring his access
to the IRS internet was unreasonable.
Complainant also writes that he filed a subsequent complaint, that it
is in the discovery stage, and asks that it be consolidated with the
complaint before us. In opposition to the appeal, the agency argues
that its final order should be affirmed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.301 provides that where a person is
employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a
collective bargaining agreement that permits allegations of discrimination
to be raised in the negotiated grievance procedure, an election must be
made to proceed under either the negotiated grievance procedure or the
EEO complaint procedure (part 1614). The regulation provides that the
election is indicated by the filing of a written complaint or timely
grievance, whichever is done first.
As an employee of the Department of Treasury, IRS, complainant is
employed by an agency subject to 5 U.S.C. 7121(d). Contrary to the AJ's
finding regarding claim 6 that complainant could raise discrimination,
a review of the CBA reflects that allegations of discrimination may
not be raised in grievances claiming a suspension of 14 calendar days
or less. See Exhibit 5 of the agency's motion for summary judgment,
Article 43, Section 1.B.2.a. We also find that the record does not
support the AJ's finding that complainant filed a grievance on claim 1.
In their investigative affidavits, complainant's first line supervisor,
second line supervisor; and the human resources specialist tasked with
coordinating official time for union officials who played a primary role
in requiring complainant to check-in/check-out, all stated they were not
aware of a grievance being filed on claim 1. Complainant stated he filed
a grievance, but clarified it was a non-union grievance. Complainant's
deposition, pp. 96-97. While the union invoked arbitration, the CBA
reflects that for issue 1, a prior grievance was not a prerequisite.
IR, p. 553. It is unclear from the CBA excerpts in the record whether
discrimination could be raised in the procedure the union used to invoke
arbitration on claim 1. Accordingly, we vacate the AJ's dismissal of
claims 1 and 6 on the stated grounds that complainant elected to file
grievances.
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. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
We find that claim 1 fails to state a claim. It concerns union
activities, i.e., procedures under the CBA for accounting for union
time by union officials. The Commission has no jurisdiction over
this matter. Strange v. United States Postal Service, EEOC Appeal No
01A55538 (December 19, 2005) (Commission has no jurisdiction over claim
that management discriminatorily cancelled or rescheduled meetings by a
complainant to perform her duties as a union steward to investigate and
process grievances). We note that the CBA provides special accelerated
arbitration procedures to resolve disputes such as claim 1. IR, p. 553;
Exhibit 5 of the agency's motion for summary judgment, Article 43,
Section 1.B.3. Hence, there is a forum with expertise in CBA contract
interpretation to resolve such a dispute, and the record reflects the
union utilized this procedure.
The finding of no discrimination on claim 2 is affirmed. The record
contains un-rebutted evidence showing complainant was not charged with
AWOL on March 14, 2006.
Agencies are required to provide official time in accordance with
29 C.F.R. � 1614.605(b). If the employee is a representative of the
agency and he designates another employee of the agency as his or her
representative, the representative shall have a reasonable amount of
official time, if otherwise on duty, to prepare the complaint and respond
to agency and EEOC requests for information. Reasonable is defined
as whatever is appropriate, under the particular circumstances of the
complaint, in order to allow a complete presentation of the relevant
information associated with the complaint and to respond to agency
requests for information. EEOC Management Directive for 29 C.F.R. Part
1614 (EEO-MD-110), page 6-15 (November 9, 1999). The remedy for the
improper denial of official time is to restore such personal leave as
may have been used in lieu of official time. EEO-MD-110, page 5-27.
Based upon our review of the May 4, 2006, complaint, and noting it only
contained claim 1, we find that granting three hours of official time
was reasonable. Much supporting information submitted in and with
the complaint went far beyond what was necessary to present claim 1 at
the complaint stage. Shaw v. Federal Deposit Insurance Corporation,
EEOC Appeal No. 0120072091 (October 2, 2007) (affirming the grant of
two hours of official time to prepare a complaint).
Regarding claim 4, we find, for the reasons set forth by the AJ,
and because complainant conceded that he was allowed to finish his
conversation, that there was no reprisal discrimination.
We find that complainant has effectively withdrawn claim 6. Initially, he
asserted that he was discriminatorily charged LWOP on November 13, 2006.
The agency explained that he was charged LWOP that day because it was the
effective date of a one day suspension. Complainant presented no evidence
the suspension was discriminatory, and there was none in the record.
On appeal, complainant now writes claim 6 regards his being threatened
with three days of LWOP in connection with an August 28, 2007, letter
proposing to suspend him for three days. This matter was not part of
the complaint, as amended. By stating claim 6 actually regards a matter
that was never part of his complaint, we find complainant has effectively
withdrawn claim 6.
We find, for the same reasons as the AJ, that complainant did not prove
reprisal discrimination regarding claim 7.
Complainant's request to join this complaint with a subsequent complaint
is denied.
CONCLUSION
We find no reprisal discrimination on claims 2, 4, 6 and 7. Claim 1 fails
to state a claim. Regarding claim 3, the agency granted complainant's
representative a reasonable amount of official time.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
January 13, 2010
__________________
Date
1 This requirement was lifted in April or May 2006.
2 On appeal, complainant writes that claim 5 is the same as claim 3.
Accordingly, we need not address claim 5.
3 In the email the representative did not identify his client, but the
preponderance of the evidence shows it was complainant. In his request
for official time, the representative wrote his client was the only one
in the informal counseling stage with an identified EEO counselor, and
that the client already received his notice of right to file a complaint.
This matches complainant. Also, in explaining claim 3, the representative
wrote his client was complainant. IF, 104.
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0120093128
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093128