Felix Fernandez, Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionOct 2, 2009
0120092647 (E.E.O.C. Oct. 2, 2009)

0120092647

10-02-2009

Felix Fernandez, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.


Felix Fernandez,

Complainant,

v.

Eric H. Holder, Jr.,

Attorney General,

Department of Justice,

Agency.

Appeal No. 0120092647

Agency No. P20060024

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated May 5, 2009, 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.

In his complaint, complainant alleged that he was subjected to

discrimination on the bases of national origin (Hispanic and Cuban),

color (Black) and reprisal for prior protected EEO activity when:

1. in October 2004, he was charged with being Absent Without Leave

(AWOL);

2. on December 14, 2004, his health coverage was cancelled and not

reactivated until March 2005;

3. in April 2005, he became aware that his intranet (GroupWise) account

was disabled;

4. on April 29, 2005, and May 1, 2005, false statements were made by

the agency to a prosecuting attorney and resulted in his conviction of

a felony on May 1, 2005;

5. on May 3, 2005, he was indefinitely suspended;

6. on June 11, 2005, he was terminated from the Bureau;

7. between June 12-25, 2005, the Bureau deducted money from his annual

leave entitlements;

8. on June 30, 2005, the state of Hawaii's Unemployment Insurance Division

denied him benefits;

9. on July 13, 2005, a Bureau attorney refused to answer questions in

court pertaining to his unemployment case;

10. on August 1, 2005, the Unemployment Insurance Division denied his

appeal, although later, on September 1, 2005, he was notified that he

was entitled to unemployment benefits; and

11. on approximately October 9, 2005, a management official violated

the Freedom of Information/Privacy Act (FOI/PA) by releasing information

about a previous restraining order issued against complainant.

The agency dismissed claims (1) - (3) and (5) - (7) pursuant to 29

C.F.R. �1614.107(a)(2) for untimely EEO Counselor contact. The agency

noted that complainant first contacted the Counselor on September 28,

2005. The events alleged in claims (1) - (3) and (5) - (7) occurred

more than 45 days prior to complainant's contact. Further, the agency

dismissed claims (4) and (8) - (11) pursuant to 29 C.F.R. �1614.107(a)(1)

for failure to state a claim. In particular, the agency indicated that

these claim were collateral attacks on other proceedings. This appeal

followed.

On appeal, complainant presented an argument that claims (4) and (8) -

(11) stated a viable claim. Specifically, he indicated that the alleged

events did in fact cause harm. Therefore, complainant asserted that

he stated a claim. As such, complainant requests that the Commission

reverse the agency's dismissal. The agency responded requesting that

the Commission affirm its decision.

Claims (1) - (3) and (5 ) - (7)

EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall

dismiss a complaint or a portion of a complaint that fails to comply

with the applicable time limits contained in �1614.105, �1614.106 and

�1614.204(c), unless the agency extends the time limits in accordance

with �1614.604(c).

EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved

person must initiate contact with an 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.

EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the

Commission to extend the time limit if the complainant can establish that

complainant was not aware of the time limit, that complainant did not

know and reasonably should not have known that the discriminatory matter

or personnel action occurred, that despite due diligence complainant

was prevented by circumstances beyond his control from contacting the

EEO Counselor within the time limit, or for other reasons considered

sufficient by the agency or Commission.

Upon review of the record, it was established that complainant first

contacted an EEO counselor on September 28, 2005, regarding the events

which occurred between October 2004 and June 25, 2005. These events were

well beyond the 45-day time limit. The record shows that complainant

has filed prior EEO complaints and was, therefore, aware of the 45-day

time limit. Further, complainant provided no explanation for the delay.

Therefore, we find that the agency properly dismissed claims (1) - (3)

and (5) - (7) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO

contact.

Claims (4) and (8) - (11)

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).

The Commission has held that an employee cannot use the EEO complaint

process to lodge a collateral attack on another proceeding. See Wills

v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);

Kleinman v. United States Postal Service, EEOC Request No. 05940585

(September 22, 1994); Lingad v. United States Postal Service, EEOC

Request No. 05930106 (June 25, 1993).

In claim (4), complainant alleged discrimination regarding statements

made to a prosecutor. In claims (8)-(10), complainant asserted that

the agency interfered with his unemployment benefits. Finally, in claim

(11), complainant argued that he was discriminated against regarding a

release of documents though a FOIA request. We find that complainant

has asserted collateral attacks on the state's unemployment process,

the state's prosecution of a criminal charge levied against complainant,

and the FOIA process. Complainant should have raised his concerns

within those processes. Although, complainant has asserted that he was

harmed by the alleged events, these claims are not actionable within

the EEO complaint process. Therefore, we find that the agency properly

dismissed claims (4) and (8)-(11) pursuant to 29 C.F.R. � 1614.107(a)(1)

for failure to state a claim.

Accordingly, we AFFIRM the agency's final decision dismissing the

complaint.

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

October 2, 2009

__________________

Date

2

0120092647

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120092647