0120102029
06-24-2011
Carlos S. Alvarez-Ali, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
Carlos S. Alvarez-Ali,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120102029
Agency No. HS-09-ICE-006664
DECISION
On April 14, 2010, Complainant filed an appeal from the Agency’s March
15, 2010, final 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. The Commission
accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following
reasons, the Commission AFFIRMS the Agency’s final decision.
ISSUES PRESENTED
The issues presented are whether the Agency properly dismissed
Complainant’s claims for untimely EEO Counselor contact and for failure
to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was
offered a position as an Immigration Enforcement Agent (IEA) at the
Agency’s Office of Deportation Removal Operations in New York, New
York. Complainant was transferring to Immigration and Customs Enforcement
from Customs and Border Protection.
On April 13, 2009, Complainant failed to report for his first day at the
IEA position. The record reflects that Complainant had been arrested
by the Metropolitan Transportation Authority Police on the morning of
April 13, 2009. That same day, Complainant sought and received a letter
from the local District Attorney (DA) dismissing his arrest prior to
criminal court arraignment. On April 14, 2009, Complainant called a Human
Resource Specialist (HRS) at the Agency’s Dallas Service Center. HRS
stated that the Agency no longer wanted him and instructed him to fax
the letter from the DA’s office to the Dallas Service Center.
On April 17 2009, Complainant received a letter dated April 13,
2009, notifying him of the Agency’s decision to rescind his offer
of employment for his failure to report to duty. On April 21, 2009,
Complainant contacted an Employee and Relations Specialist (ERS) to
inquire as to whether the Agency had cleared him for work. On April 22,
2009, ERS responded that the case was under review by the Office of
Professional Responsibility (OPR). On May 3, 2009, Complainant again
inquired about the status of his rescission. In an e-mail dated May
4, 2009, Complainant received another response from ERS that his case
was still under OPR review. Complainant initiated contact with an EEO
Counselor on June 15, 2009.
On September 8, 2009, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination on the bases of religion
(Muslim), national origin (perceived Middle Eastern), and color (Not
Specified) when:
1. On April 17, 2009, he became aware that the Agency rescinded its
offer of employment for the position of IEA; and
2. On May 4, 2009, he became aware that OPR was still investigating the
Agency’s decision to rescind his employment offer.
In its March 15, 2010 final decision, the Agency dismissed Complainant’s
claims for untimeliness pursuant to 29 C.F.R. § 1614.107(a)(2) and for
failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The
Agency found that Complainant identified April 17, 2009 as the date when
he learned of the offer rescission, yet he did not initiate EEO Counselor
contact until June 15, 2009 which was 14 days beyond the required 45
day period for contact an EEO Counselor. The Agency further found that
Complainant’s assertion that the Agency discriminated against him by
continuing an investigation into his offer rescission failed to state a
claim, framing this second contention as a collateral attack on another
department’s investigative proceedings.
CONTENTIONS ON APPEAL
On appeal, Complainant contended that the discriminatory event did
not occur with his receipt of the letter of rescission on April 17,
2009. Rather, Complainant asserted that the discrimination was ongoing as
a result of the OPR investigation. Thus, when Complainant was informed
on May 4, 2009 of OPR’s investigation, he concluded that the Agency
might be slowing the process and he developed a reasonable suspicion of
the Agency’s discriminatory animus. Complainant contended that he was
not untimely in contacting the EEO Counselor.
In response, the Agency maintained that Complainant’s receipt of
the April 17, 2009 letter should have given rise to any reasonable
suspicion of discrimination. The Agency further maintained that even
if the Commission were to reject the April 17, 2009 date as the trigger
of reasonable suspicion, Complainant had notice that his case was under
OPR investigation on April 22, 2009, yet still failed to initiate timely
contact after this occurrence. Therefore, the Agency urged the Commission
to find Complainant’s EEO Counselor contact untimely. The Agency further
addressed Complainant’s second claim by again framing the matter as
a collateral attack on the OPR investigation. The Agency concluded that
claim 2 failed to state a claim and urged the Commission to concur.
ANALYSIS AND FINDINGS
Claim 1
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 fails to
comply with the applicable time limits contained in
29 C.F.R. § 1614.105(a)(1), which in turn, requires that complaints of
discrimination should be brought to the attention of the EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory or,
in the case of a personnel action, within 45 days of the effective date
of the action. The Commission has adopted a “reasonable suspicion”
standard (as opposed to a “supportive facts” standard) to determine
when the 45 day limitation period is triggered. See Howard v. Dep’t
of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time
limitation is not triggered until a complainant reasonably suspects
discrimination, but before all the facts that support a charge of
discrimination have become apparent.
Upon review, we find that the Agency properly dismissed claim 1 on the
grounds of untimely EEO Counselor contact. The record reflects that
Complainant learned of the alleged discriminatory event on April 17,
2009, but did not initiate contact with an EEO Counselor until June
15, 2009, which is beyond the 45 day limitation period. On appeal,
Complainant asserted that the Agency’s actions did not arouse a
reasonable suspicion until he learned on May 4, 2009, that he was the
subject of an ongoing investigation by OPR. Complainant has failed to
establish how the Agency’s May 4, 2009 response created any more of
a reasonable suspicion of discrimination regarding his rescission than
his April 17, 2009 receipt of the rescission letter or his April 22,
2009 receipt of HRS’s e-mail notifying him of the OPR investigation.
Accordingly, we affirm the Agency’s dismissal of claim 1 on the grounds
of untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2).
Claim 2
We find that the Agency also properly dismissed Complainant’s second
claim for 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). The Commission has held that an employee cannot use the
EEO complaint process to lodge a collateral attack on another proceeding.
See Wills v. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994);
Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993).
Here, the proper forum for Complainant to have raised his challenges
to actions which occurred during the OPR investigation was in that
investigative proceeding itself. It is inappropriate to now attempt
to use the EEO process to collaterally attack actions which occurred
during the OPR process. Furthermore, the Commission has held that
merely conducting an investigation into purported improper or illegal
conduct does not cause any injury without more, for example, resulting
disciplinary action. Shelly v. Dep't of the Treasury, EEOC Appeal
No. 01996655 (Oct. 27, 2000). It has also applied this rule to the
initiation of an internal investigation. Martin v. Dep't of Justice
(Federal Bureau of Prisons), EEOC Appeal No. 01A32934 (Sept. 17, 2003).
Accordingly, we affirm the Agency’s dismissal of claim 2 for failure
to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission AFFIRMS
the Agency’s final decision.
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 (S0610)
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 (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
___6/24/11_______________
Date
2
0120102029
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102029