0120111807
06-10-2011
Idris L. Fofana, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.
Idris L. Fofana,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 0120111807
Agency No. 11-63-00005D
DECISION
Upon review, we find that the Agency’s decision dated January 11, 2011,
dismissing Complainant’s complaint for failure to state a claim is
proper pursuant to 29 C.F.R. §1614.107(a)(1). The Agency’s decision
dismissing the complaint is AFFIRMED.
BACKGROUND
In his complaint, dated December 15, 2010, Complainant alleged
discrimination based on national origin (African/Sierra Leon), disability
(neck injury), and in reprisal for prior EEO activity when: the Agency
failed to accommodate his disability and did not invite him to meetings
or include him in work related issues; his Deloitte manager sexually
harassed him by calling him “girlfriend;” and, he was removed from
the Agency’s project on August 27, 2010. In its decision, the Agency
dismissed the complaint since Complainant was not an employee or applicant
for employment within the Agency. 29 C.F.R. § 1614.103(c).
ANALYSIS AND FINDINGS
The Agency stated that Complainant was a contractor because he was
employed by Deloitte & Touche, LLP (Deloitte) of Arlington, Virginia,
assigned to work on a project for the Agency and not an employee of
the Agency. Final Agency Decision, at 3. The Agency also stated that
Complainant’s work was assigned to him by his manager at Deloitte;
he also used his Deloitte laptop and personal ergonomic equipment for
his work; his performance reviews and leave issues were handled by
Deloitte; and, it was Complainant’s Deloitte manager who allegedly
terminated his project at the Agency. Complainant does not dispute the
foregoing. In fact, on appeal, Complainant indicates that Deloitte was
his employer and he was hired by Deloitte at the relevant time period.
Complainant’s First February 12, 2011, Appeal Brief, Page 2 of 8;
Complainant’s Second February 12, 2011, Appeal Brief, Page 2 of 22.
He also received the mid-year review process from a Deloitte manager,
and not the Agency. Id., Page 5 of 22. Based on the foregoing, we find
that the complaint failed to state a claim since Complainant was not an
employee of the Agency at the relevant time period.
CONCLUSION
Accordingly, the Agency’s decision dismissing Complainant’s complaint
is AFFIRMED.
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
6/10/11
__________________
Date
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0120111807
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111807