Attila Hakimoglu, Complainant,v.James Lee Witt, Director, Federal Emergency Management Agency Agency.

Equal Employment Opportunity CommissionJul 24, 2000
01996775 (E.E.O.C. Jul. 24, 2000)

01996775

07-24-2000

Attila Hakimoglu, Complainant, v. James Lee Witt, Director, Federal Emergency Management Agency Agency.


Attila Hakimoglu v. Federal Emergency Management Agency

01996775

July 24, 2000

.

Attila Hakimoglu,

Complainant,

v.

James Lee Witt,

Director,

Federal Emergency Management Agency

Agency.

Appeal No. 01996775

Agency No. 99022

DECISION

On August 30, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD), dismissing his complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act, as amended 42 U.S.C. � 2000e et seq.<1> The Commission accepts

the appeal in accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be

codified at 29 C.F.R. � 1614.405).

On May 3, 1999, complainant contacted the EEO office claiming that he

was subjected to discrimination based on National Origin (Turkish)

and reprisal. Informal efforts to resolve complainant's concerns

were unsuccessful. Accordingly, on May 31, 1999, complainant filed a

formal complaint.

On July 27, 1999, the agency issued a FAD, dismissing the complaint

for failure to state a claim. The FAD framed complainant's claims as

follows<2>:

On May 3, 1999, complainant was terminated from FEMA TX-NPSC because of

his National Origin (Turkish). Complainant stated that he was terminated

after he had made an appointment with an Equal Rights Officer.

On April 15, 1999, complainant was harassed and subjected to offensive

jokes regarding his military duty in the Turkish Army. Complainant

alleges his supervisor laughed and remarked in a condescending tone of

voice that he was afraid of the complainant now.

On or about March 21, 1999, complainant was discriminated against when

his supervisor harassed him by asking him to seek and apply for other

positions in FEMA TX-NPSC. Complainant alluded to his supervisor not

wanting a person of Turkish heritage on his staff.

The agency dismissed claims 1-3 for failure to state a claim. According

to the FAD, management was not aware of complainant's participation in

the protected activity in claim 1, making an appointment with an EEO

counselor, prior to the decision to terminate complainant's employment.

The remaining claims, 2 and 3, were dismissed because complainant's

complaint did not indicate that he was an aggrieved employee.

Claim 1

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an

agency shall dismiss a complaint that fails to sate 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.

See Diaz v. Department of the Air Force, EEOC Request No. 05931049

(April 22, 1994).

In claim 1, complainant claimed that he was terminated on May 3, 1999,

because of his Turkish heritage. Complainant also claimed and that

the termination is in reprisal for contacting the EEO Counselor on

May 3, 1999. The agency claims that complainant was terminated for

excessive use of unscheduled annual and sick leave and that management

was unaware of complainant's intention to contact the EEO Counselor prior

to the termination. After a review of the agency's final decision in

claim 1, the Commission finds that the agency has addressed the merits

of complainant's claim without a proper investigation as required by

the regulations. We find that the agency's articulated reason for

the action in dispute goes to the merits of complainant's complaint,

and is irrelevant to the procedural issue of whether he has stated a

justiciable claim under Title VII. See Osborne v. Department of the

Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United

States Postal Service, EEOC Request No. 05930220 (August 12, 1993);

Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642

(August 15, 1991). Because the termination of employment, regardless of

the reason behind it, involves a �present harm or loss with respect to

a term, condition, or privilege of employment�, the agency's decision to

dismiss claim 1 for failure to state a claim was improper and REVERSED.

Claims 2 and 3

In claim 2, complainant alleged that he was harassed and subjected to

offensive jokes on April 15, 1999, regarding his military service in

Turkey and that his supervisor laughed and remarked in a condescending

manner. The agency dismissed claim 2 on the grounds that it failed

to state a claim. According to the FAD, because there is only one

reported incident involving derogatory comments about complainant's

Turkish heritage, it is not sufficient to sustain a claim of harassment

based on national origin.

In claim 3, complainant alleged that he was discriminated against

around March 21, 1999, when his supervisor encouraged him to apply and

provided information about obtaining another position at the agency.

The agency dismissed claim 3 on the grounds that it failed to state a

claim, because complainant has not demonstrated that he is an aggrieved

employee. Specifically, the agency claims that by providing job leads

and names of headhunters, complainant has not demonstrated that a term

or condition of his employment has been affected.

The Commission has repeatedly found that remarks or comments unaccompanied

by a concrete agency action are not a direct and personal deprivation

sufficient to render an individual aggrieved for the purposes of

Title VII. See Backo v. United States Postal Service, EEOC Request

No. 05960227 (June 10, 1996); Henry v. United States Postal Service,

EEOC Request No. 05940695 (February 9, 1995). The Commission does

not view the matters raised in claims 2 and 3 as single, unrelated

incidents. When they are viewed together in a light most favorable to

complainant in conjunction with the final termination for excessive use

of unscheduled leave addressed above in claim 1, these incidents are

related to a present harm or loss with respect to a term, condition,

or privilege of employment. Derogatory comments regarding complainant's

heritage and complainant's receipt of job leads and names of headhunters

viewed together with his eventual termination demonstrate that a term

or condition of his employment has been affected. Therefore, we find

that the dismissal of claims 2 and 3 was improper and is REVERSED.

Based upon a review of the record, and for the foregoing reasons, it is

the decision of the Commission to REVERSE the final agency's decision

dismissing complainant's complaint for failure to state a claim.

We REMAND all of the claims to the agency for further processing in

accordance with this decision and applicable regulations.

ORDER (E0400)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). 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 (K1199)

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 64

Fed. Reg. 37,644, 37659-60 (1999) (to be codified and hereinafter referred

to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. 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 filed your appeal with the

Commission. 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. 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, Acting Director

Office of Federal Operations

July 24, 2000

Date

1On November 9, 1999, revised regulations

governing the EEOC's federal sector complaint process went into effect.

These regulations apply to all federal sector EEO complaints pending at

any stage in the administrative process. Consequently, the Commission

will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),

where applicable, in deciding the present appeal. The regulations, as

amended, may also be found at the Commission's website at www.eeoc.gov.

2Although complainant's claims were not numbered in the FAD, we number

them here for clarification.