0120091019
05-05-2009
Johnny A. Arnold, II, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Johnny A. Arnold, II,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120091019
Agency No. CRC-08-11-097
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated October 9, 2008, 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. Upon review, the Commission finds that complainant's complaint was
improperly dismissed in part, pursuant to 29 C.F.R. � 1614.107(a).
In a formal EEO complaint dated August 25, 2008, complainant alleged
that the agency subjected him to disparate treatment and hostile
work environment harassment based on race (African-American) when his
supervisor (S1) (1) on April 10, issued him a reprimand for requesting
union representation at his midterm and pointed out errors during the
evaluation without standards, (2) on April 16, questioned his use of leave
rather than compensatory time, (3) in August 2008, issued him a five day
suspension for failing to complete weekly reports to her satisfaction,
and (4) caused him to request a transfer. Complainant's complaint was
in narrative form.
In its October 9 final decision, the agency dismissed complainant's
claims of disparate treatment and harassment, including incidents
(1), (2), and (4), pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. Further, the agency dismissed (3) pursuant to 29
C.F.R. � 1614.107(a)(4) for raising the same claim that was raised
in a union grievance. The instant appeal from complainant followed.
On appeal, complainant stated that the assigned EEO Counselor did not
properly investigate his allegations and that, if he had done so, he
would have learned more incidents to support his claims.
As to complainant's claims of disparate treatment and harassment regarding
the actions alleged in (1), (2), and (4), the Commission finds that the
matters fail to state a claim under EEOC regulations. Complainant failed
to show that he suffered harm or loss with respect to a term, condition,
or privilege of employment for which there is a remedy1 or that the
actions as alleged are sufficiently severe or pervasive to alter
the conditions of complainant's employment. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). Conversely, regarding (3) -
a five day suspension, we find that the agency failed to establish that
complainant raised the same matter in a negotiated grievance procedure
that permits allegations of discrimination. Further, in light of
complainant's appellate statement, we note that a Counselor does not
conduct investigations but rather informs of rights and attempts to
resolve informally. Based on the above, we AFFIRM the final agency
decision in part and REVERSE and REMAND it in part. We remand the
matter of the suspension to the agency for processing consistent with
this decision and the Order below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K1208)
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 77960, Washington,
DC 20013. 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) (1994 & Supp. IV 1999).
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 (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 (T0408)
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 (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
May 5, 2009
__________________
Date
1 See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
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0120091019
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091019