Fayez Hanna, Complainant,v.Alexis M. Herman, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionMar 24, 2000
01975087 (E.E.O.C. Mar. 24, 2000)

01975087

03-24-2000

Fayez Hanna, Complainant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.


Fayez Hanna v. Department of Labor

01975087

March 24, 2000

Fayez Hanna, )

Complainant, )

)

v. ) Appeal No. 01975087

) Agency No. 6-11-075

Alexis M. Herman, )

Secretary, )

Department of Labor, )

Agency. )

______________________________)

DECISION

The Commission finds that the agency erred, in part, in its May 27,

1997 decision dismissing a portion of Complainant's complaint for

failure to state a claim and untimely EEO counselor contact, pursuant

to the provisions of 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified

and hereinafter referred to as 29 C.F.R.�1614.107(a)(1) and (2)).<1>

Although direct appeals of decisions partially dismissing a complaint are

no longer permissible under the regulations revised on November 9, 1999,

the agency has informed the Commission that the remainder of the complaint

is not pending before the agency or an Administrative Judge. Therefore,

we shall consider the instant appeal because there are apparently no

remaining claims from the instant complaint pending anywhere in the

administrative EEO process.

The record shows that Complainant sought EEO counseling on March 22, 1996,

alleging that he had been discriminated against on the bases of race,

color, national origin, religion, age and physical disability when: (a)

he was denied annual leave; (b) he was subjected to mandatory overtime

on the weekend without being granted credit hours or compensatory time;

(c) he was given make-work assignments; (d) he was not provided office

space commensurate with his grade; (e) he was not provided with clerical

and technical assistance; and, (f) his supervisor did not inform him

about official policies such as furlough procedures.

On May 17, 1996 Complainant filed a formal complaint of discrimination

alleging that he had been discriminated against on the bases of race,

color, national origin, religion, age, physical disability and reprisal

for prior EEO activity.

By letter dated June 4, 1996, the agency accepted the following issues

for investigation:

(1) Complainant's supervisor denied him compensatory time for working

during the weekend (February 24 & 25, 1996);

(2) On March 8, 1996, Complainant's supervisor denied approval of

Complainant's three-day leave request;

(3) Complainant's supervisor has not provided him with an office

commensurate with his grade;

(4) Complainant's supervisor has denied him clerical support; (5)

Complainant's supervisor failed to inform him of official policy on

the furlough.

By letter dated June 13, 1996, Complainant requested "the addition of

the following issues" to the formal complaint:

(a) since March 1995, and up to the present time, his supervisor continues

to "idle" him;

(b) his supervisor continued to make him work on a made-up assignment

created by JM, who was found by the court to have discriminated against

Complainant;

(c) supervisor continued to displace Complainant and made him occupy an

office outside the premises of the Directorate of Health Standards;

(d) supervisor continued to refuse returning Complainant to his official

office space and continued to have several members of lower ranks occupy

Complainant's official office space;

(e) supervisor denied Complainant's rights to return to his official

duties, responsibilities and authority, as the Director of the Office

of Risk Reduction Technology;

(f) supervisor attempted to compel Complainant to perform clerical duties

(typing) for which he had no training or experience, and which were

incompatible with his position description, rank and federal pay;

(g) supervisor designated an artificial deadline to complete an indexing

assignment of over 11,000 pages, in an attempt to accuse Complainant

of failing to meet the established deadline;

(h) up to June 13, 1996, the artificial assignment, for which

the artificial deadline was established in January, has not been

materialized;

(i) although Complainant was the person who provided to the supervisor

with the suggestion and protocol of proceeding with the negotiated

rulemaking for the 1.3 - Butadiene project, he denied any credit to

Complainant and assigned the project to other staff members, which

"yielded to wasting over three years of government resources"; and

(j) supervisor continued to make both oral and written degrading and

insulting remarks against Complainant.

By letter dated May 27, 1997, the agency amended its June 4, 1996

acceptance letter and included two additional claims to be part of

its investigation of Complainant's complaint. The additional accepted

issues are: (1) Complainant received an artificial deadline in January

1996, to complete an indexing assignment of over 11,000 pages that has

not been materialized to date;<2> and, (2) Complainant was accused of

failing to meet the established deadline on the indexing assignment.

In its letter dated May 27, 1997, the agency also dismissed the portion

of Complainant's complaint that was identified in his June 13, 1996

correspondence to the agency and identified as claims (a) - (f), and

claims (h) - (j). It is the dismissal of these claims that is the

subject of the instant appeal.

Claim (a) was dismissed for failure to state a claim and untimely EEO

counselor contact. Claims (b), (e), (i) and (j) were dismissed after

the agency found that they had not been brought to the attention of the

EEO counselor during the inquiry of Complainant's informal complaint.

Claims (c) and (d) were dismissed by the agency on the grounds the

matters raised therein had already been accepted as claim (3) in the

agency's June 4, 1996 acceptance letter. Claim (f) was dismissed on

the grounds that it had already been accepted for investigation as claim

(4) in the June 4, 1996 acceptance letter.

A review of the record persuades the Commission that the agency properly

dismissed claims (b), (c), (d), (e), (f), (i) and (j). However, we

find that the agency erred in its dismissal of claim (a). In claim

(a). Complainant claims that since March 1995, his supervisor causes

him to be "idle". Complainant claims that instead of providing him

assignments and keeping him busy, his supervisor prevents Complainant

from being engaged in work activities. We find that this is sufficient to

state a claim under EEOC Regulations because Complainant has claimed that

he has suffered a harm or loss affecting a term, condition or privilege

of his employment. See Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994). Moreover, Complainant claims that the

situation in question started in March 1995, and has been ongoing up

the period when complainant initiated EEO Counselor conact. Given the

circumstances of this case, we therefore determine that Complainant's

initial EEO Counselor contact was timely with respect to claim (a).

Accordingly, we AFFIRM the dismissal of claims (b), (c), (d), (e),

(f), (i) and (j). The dismissal of claim (a) is REVERSED. Claim (a)

is REMANDED for further processing in accordance with this decision and

applicable regulations.

ORDER (E1199)

The agency is ORDERED to process the remanded claim (claim (a)) 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 an

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, 37,659-60 (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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)

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:

March 24, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________ __________________________________

DATE EQUAL EMPLOYMENT ASSISTANT

1 On 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.

2 This claim had been identified as claim (g) in Complainant's June 13,

1996 letter.