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