0120100627
08-04-2011
Manuel Alvarez, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Manuel Alvarez,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120100627
Agency No. NY-09-0724
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 22, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Staff Assistant, GS-12 at the Agency’s San Juan District Office
facility in San Juan, Puerto Rico. In September 2009 he filed a formal
complaint alleging that the Agency discriminated against him based on
his sex (male), age (63 and 64), and reprisal for prior protected EEO
activity when:
1. he was not selected for the position of Lead Social Insurance
Specialist (AAA), advertised under job announcement number (JAN)
SH-220469-090-R011-015; and
2. on June 23, 2009, he learned that Management decided to discard a
file of an audit that he was assigned to perform.
In his complaint, Complainant contended that a GS-13 position was
canceled because it was intended for Employee 1, who was later given
the position non-competitively. The Agency dismissed claim 1 for abuse
of the EEO process. 29 C.F.R. § 1614.107(a)(9). It reasoned that
Complainant raised the same claim in prior complaint number NY-09-0413,
which was filed in May 2009.
The record contains an EEO investigative “interrogatory” indicating
the accepted issue was whether Complainant was subjected to discrimination
when on February 12, 2009, the Agency canceled vacancy announcement
SN-220469-09-ROII-015 for the position of Lead Social Insurance Specialist
(AAA) GS-0105-13. It indicated that Complainant alleged the announcement
was canceled so Employee 1 could be placed into the position. In the
unsigned interrogatory, a management official denied that Employee 1 was
placed into the position after the announcement was canceled, asserting
she was promoted to a different permanent position.
The Agency dismissed claim 2 for failure to state a claim. 29 C.F.R. §
1614.107(a)(1). It reasoned that Complainant was not harmed.
CONTENTIONS ON APPEAL
On appeal, Complainant appears to argue that complaint NY-09-0413
does not contain the same issues, but gives no explanation of this.
He writes that he has not filed multiple complaints on the same violation.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.107(a)(1) requires the dismissal
of a complaint that states the same claim that is pending before or
has been decided by the Agency or Commission. Based on our review
of the record, we find claim 1 was in prior complaint NY-09-0413.
While the vacancy announcement number in claim 1 does not precisely
match that in the prior complaint, likely due to a keyboarding error,
Complainant’s contentions regarding Employee 1 show they regard the
same position, and state the same claim. The record, however, does not
support the Agency’s finding that claim 1 is part of a clear pattern
of misuse of the EEO process for a purpose other than the prevention
and elimination of employment discrimination, the grounds for dismissal
under 29 C.F.R. § 1614.107(a)(9). The record only contained evidence
that Complainant once raised claim 1 in a prior complaint, which does
not meet the above standard.
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 a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll.
Applying the above, we find that claim 2 fails to state a claim because
Complainant was not aggrieved. Also, the Agency’s action would not
reasonably likely deter EEO activity.
The Agency’s decision to dismiss 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
August 4, 2011
__________________
Date
2
0120100627
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100627