Jamie Swidecki, Bryan Swidecki, Complainants,v.Norman Y. Mineta, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionOct 3, 2000
01a05462 (E.E.O.C. Oct. 3, 2000)

01a05462

10-03-2000

Jamie Swidecki, Bryan Swidecki, Complainants, v. Norman Y. Mineta, Secretary, Department of Commerce, Agency.


Jamie Swidecki, Bryan Swidecki v. Department of Commerce

01A05462, 01A05824

October 3, 2000

.

Jamie Swidecki,

Bryan Swidecki,

Complainants,

v.

Norman Y. Mineta,

Secretary,

Department of Commerce,

Agency.

Appeal Nos. 01A05462

01A05824

Agency Nos. 00-63-01507D

00-63-01526D

DECISION

The instant matters are being processed pursuant to a Memorandum of

Understanding (MOU) entered into by the agency, the Bureau of the Census,

and the United States Equal Employment Opportunity Commission.<1> The

MOU was entered into in order to process complaints arising from the

2000 Decennial Census more effectively and efficiently.

Pursuant to the MOU, individuals file their complaints directly with

the Commission. The Commission, through its Washington, D.C. Field

Office, then conducts an early assessment of complaints and neutral

evaluation of cases. The Washington, D.C. Field Office of the Commission

establishes a record of the complaint by obtaining an affidavit from the

complainant and by contacting an agency official to obtain the necessary

information on the complaint. Based on the record established by the

Washington, D.C. Field Office, the Washington, D.C. Field Office will:

(1) notify the agency that the individual has elected not to file a

formal complaint; (2) issue a decision dismissing the complaint and

notify the complainant of his or her right to appeal the decision to

the Office of Federal Operations; (3) conduct settlement negotiations;

or (4) notify the complainant that the complaint has been accepted and

forward the complaint to the agency for further investigation.

The Commission's Washington, D.C. Field Office dismissed Jamie Swidecki's

(complainant-1's) complaint for failure to state a claim. The Field

Office found that complainant receives no protection under EEO laws for

veterans preference. It also found that complainant failed to establish

a prima facie case of age discrimination because the only person hired

ahead of him was the same age (54). Complainant-1 timely appealed to

this Commission on August 14, 2000 (EEOC Appeal No. 01A05462).

In his complaint, complainant-1 alleged discrimination on the basis of

age when the agency failed to hire him from October 1999 until February

2000, despite his veteran's preference. Complainant also alleged that he

received a letter of reprimand (later rescinded) for nepotism in hiring,

and was threatened with termination. Complainant-1 contends that the

agency engaged in illegal discrimination against �the Swidecki name.�<2>

Meanwhile, complainant-1's son, Bryan Swidecki (complainant-2) also filed

a complaint of discrimination. Complainant-2 alleged discrimination

on the bases of disability (corrective lenses) and retaliation when he

was not hired from October 1999 until April 2000. He contends that he

was not hired sooner because he was �a Swidecki.� He contends that the

agency terminated him out of spite when his father filed an EEO complaint

and agency officials were forced to reinstate his mother.

The Field Office also dismissed complainant-2's complaint for failure

to state a claim. Specifically, the Field Office found that complainant

had not engaged in prior protected activity and had admitted that he was

not discriminated against on the basis of disability. The Field Office

quoted complainant's affidavit, in which he stated, �No one every[sic]

mentioned my disability. No one ever treated me differently because of

my disability.� Finding no other cognizable basis for complainant-2's

complaint, the Field Office found dismissal appropriate pursuant to 29

C.F.R. � 1614.107(a)(1). Complainant-2 timely appealed to this Commission

on August 29, 2000 (EEOC Appeal No. 01A05824).

On appeal, both complainants request that their complaints be

consolidated. The Commission will consider both 01A05462 and 01A05824

in the present decision. See 29 C.F.R. � 1614.606 (providing grounds

for consolidation of complaints).

EEOC Regulations require the dismissal of complaints that fail to state

a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim, complainant

must allege present harm inflicted on the basis of race, sex, religion,

national origin, age, disability, or prior protected activity. See Diaz

v. Department of the Air Force, EEOC Request No. 05931049 (April 21,

1994).

The Commission does not have the authority to enforce veterans preference

laws. Therefore, to the extent that complainant-1 raised his claims

on the basis of veterans preference, he has failed to state a claim.

Further, �the Swidecki name,� raised by both complainants, is not a

cognizable basis for discrimination complaints.<3> To the extent that

both complainants believe they are mistreated merely because of their

name and/or relationship, they fail to state a claim.

Complainant-1's other basis, age, is suitable for investigation.

The Field Office's findings that complainant failed to establish

prima facie case of age discrimination improperly addressed the merits

of complainant-1's complaint. His claim that he was not hired, and

subsequently was disciplined, because of his age must be investigated.

Complainant-2 raised the basis of disability in his formal complaint, but

then recanted his claim in his affidavit. The Field Office dismissed this

basis in light of complainant-2's affidavit. On appeal, complainant does

not dispute his admission that the agency never treated him differently

because of his disability. Therefore, complainant-2's claim based on

disability was properly dismissed.

However, complainant-2 contends that he was fired after his father

sought EEO counseling and his mother was reinstated. Complainant need

not be the person who engaged in prior EEO activity to state a claim of

retaliation. See EEOC Compliance Manual, Volume II, Section 8-II(C)(3)

(May 20, 1998). Retaliation against someone �so closely related to or

associated with the person exercising his or her statutory rights that

it would discourage or prevent the person from pursuing those rights�

states a claim. See id. Complainant-2's father filed a complaint,

and therefore, complainant's retaliation claim is cognizable.

CONCLUSION

Accordingly, the Field Office's dismissal of complainant-1's claims on

the basis of age is REVERSED. The dismissal of complainant-2's claims

on the basis of retaliation also is REVERSED. These reversed claims

are REMANDED for further processing as provided herein. The dismissal

of the remaining claims and bases is AFFIRMED.

ORDER

As provided in the Memorandum of Understanding, the Washington Field

Office shall conduct settlement negotiations and, if unsuccessful,

forward the files to the agency for investigation. The agency shall

complete its investigation within 180 days upon receipt of the file.

At the conclusion of the investigation, the agency must forward a

copy of the investigation to complainant, and provide her rights to a

final agency decision, or a hearing with an EEOC Administrative Judge.

The agency must provide the Compliance Officer with a copy of its cover

letter sending the investigation and notice of rights to complainant

as indicated herein. If the complaint has been settled or otherwise

closed within the 180 day time frame, then the agency must provide the

Compliance Officer with notice of such.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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 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 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 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 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 (T0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

October 3, 2000

__________________

Date

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

______________________________

1On 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2He claims that his ex-wife was terminated for having been married to him.

This matter was not addressed by the Field Office, or by complainant

on appeal. Therefore, we shall not address this issue in this decision.

3Complainants are not claiming national origin discrimination.