01990861
10-27-1999
Gerardo DeGuzman, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Gerardo DeGuzman v. Department of the Treasury
01990861
October 27, 1999
Gerardo DeGuzman, )
Appellant, )
)
v. ) Appeal No. 01990861
) Agency No. 98-4223
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from two final agency
decisions (FAD-1 and FAD-2) concerning his complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1> FAD-2 was
dated October 9, 1998. The appeal was postmarked on November 6, 1998.
Accordingly, the appeal of FAD-2 is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issues on appeal are whether appellant's appeal of FAD-1 is timely
and whether the agency properly dismissed appellant's complaint for
failure to state a claim.
BACKGROUND
Appellant filed a formal complaint on June 8, 1998, alleging
discrimination on the basis of race (Asian Pacific Islander) and sex
(male) when the agency:
(1) denied appellant leave in October 1994 and January 1995;
(2) denied appellant an opportunity to teach Small Business Workshops
between 1995 and 1997;
(3) failed to give appellant compensatory time for teaching a VITA class
in 1995;
(4) denied appellant the opportunity to serve as a spokesperson during
Media Day on April 15, 1995;
(5) denied appellant the opportunity to serve as VITA Instructor in 1995,
1996, and 1997;
(6) failed to give appellant a timely performance evaluation in February
1996 by the agency;
(7) removed a complex development tax case from his inventory of cases
on September 17, 1997;
(8) yelled at appellant and made harsh comments to him in 1997; and
(9) issued him a counseling memorandum for leave misuse on March 16,
1998.
In FAD-1 dated July 21, 1998, the agency dismissed allegations (1)-(8)
in which it found that appellant had initiated EEO Counsel contact on
April 26, 1998 which is more than 45 days after the date of alleged
actions in allegations (1)-(8). On October 9, 1998, the agency issued a
second FAD concerning allegation (9). In the FAD-2, the agency dismissed
allegation (9) in which it found that the memorandum in question had been
removed from the appellant's employee performance file and destroyed.
Therefore, it dismissed this allegation for failure to state a claim.
The appeals of FAD-1 and FAD-2 followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.403(c) provides that the Commission
shall dismiss an appeal if the complainant fails to file his appeal
within the time limits. Regarding appellant's appeal of FAD-1, this
FAD was dated July 21, 1998, and received by appellant on July 23, 1998.
The appeal of FAD-1 was postmarked on November 6, 1998. Appellant filed
his appeal beyond the thirty (30) day limitations period and provided
insufficient justification for extending the filing period. Accordingly,
the Commission finds the appeal of FAD-1 untimely and is, therefore,
dismissed. See 29 C.F.R. �1614.402 and 29 C.F.R. �1614.604.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, 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; �1614.106(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 evidence in the file indicates that from March 16, 1998 to July
8, 1998, the memorandum which appellant describes in allegation (9)
appeared in appellant's employee performance file. Even though the
memorandum has been removed and destroyed and the agency states that it
will not be used as a basis for any future evaluations of appellant,
appellant was aggrieved due to the presence of the memorandum in his
employment performance file. Therefore, we find that the complaint
states a claim.
Appellant requested compensatory damages in his complaint. Should
appellant prevail on his allegation, then the possibility of an award of
compensatory damages exists. The agency must address appellant's request
for compensatory damages. Therefore, the Commission is remanding the
matter.
CONCLUSION
Accordingly, the decision of the agency in FAD-2 was improper and is
REVERSED and REMANDED for further processing in accordance with this
decision and the proper regulations. The agency's FAD-1 is dismissed
from the appeal.
ORDER
The agency is ORDERED to process allegation (9) in accordance with 29
C.F.R. �1614.108. The agency shall acknowledge to the appellant that it
has received the remanded allegation within thirty (30) calendar days of
the date this decision becomes final. The agency shall issue to appellant
a copy of the investigative file and also shall notify appellant 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 appellant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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 29 C.F.R. ��1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION
This decision affirms the agency's FAD-1, 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 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. It is the position
of the Commission that 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. You should be aware,
however, that courts in some jurisdictions have interpreted the Civil
Rights Act of 1991 in a manner suggesting that a civil action must be
filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision. To ensure that your civil action is considered timely,
you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision or to consult an attorney concerning
the applicable time period in the jurisdiction in which your action
would be filed. 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. 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 (Z1092)
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:
Oct. 27, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 6, 1998, appellant filed one Form 573 appealing two FAD's
issued by the agency on July 21, 1998 and October 9, 1998. The two appeals
were docketed under the instant appeal.