0120072617
08-23-2007
Norman Wright, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, (Patent and Trademark Office), Agency.
Norman Wright,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
(Patent and Trademark Office),
Agency.
Appeal No. 0120072617
Agency No. 07-56-24
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated April 12, 2007, dismissing his formal 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.,
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
On December 8, 2006, complainant, a former agency employee, initiated
EEO contact. Informal efforts to resolve his concerns were unsuccessful.
On January 22, 2007, complainant filed the instant complaint. Therein,
complainant claimed that he was the victim of unlawful employment
discrimination on the bases of race (African-American), sex (male),
color (black), disability (depression), age (D.O.B. 01/31/63), and in
reprisal for prior EEO activity when:
1. in July 2005, he received an oral warning for his production;
2. on October 17, 2005, he received a written warning for production;
3. on July 25, 2006, he was charged negative workflow points;
4. on August 18, 2006, he received a Proposed Letter of Removal;
5. on August 18, 2006, agency representatives made derogatory comments
to him;
6. on unspecified date, his within grade increase was denied;
7. on October 27, 2006, he received an "Unacceptable" rating on his
Fiscal Year 2006 Annual Performance Appraisal;
8. on November 27, 2006, he received a denial of his Fiscal Year 2006
Annual Performance Appraisal reconsideration request;
9. on November 16, 2006, he was offered a Last Chance Agreement (LCA)
that did not provide him with reasonable accommodation or a "hardship"
consideration;
10. on December 27, 2006, he received a Letter of Removal; and
11. he was denied reasonable accommodation, including dictation
assistance, typing software and a part-time work schedule.
In its April 12, 2007 final decision, the agency dismissed claims 1, 2 and
3 pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO
Counselor contact. The agency dismissed claim 4 pursuant to 29 C.F.R. �
1614.107(a)(5) on the grounds that the proposed letter of removal was
only a preliminary action. The agency stated that even if the proposed
letter of removal was not considered a preliminary action, it would also
be dismissed for untimely EEO Counselor contact.
The agency dismissed claim 5 pursuant to 29 C.F.R. � 1614.107(a)(1) for
failure to state a claim. Specifically, the agency determined that the
agency representatives' purported remarks failed to rise to the level
of an adverse action.
The agency dismissed claim 6 pursuant to 29 C.F.R. � 1614.107(a)(2)
on the grounds that it had not been previously brought before an EEO
Counselor and is not like or related to matters for which complainant
underwent EEO counseling.
The agency dismissed claims 7, 8 and 9 for failure to state a claim.
Specifically, the agency stated that complainant was alleging a collateral
attack on the arbitration and grievance process. Specifically,
the agency found that with regard to claim 9, the LCA was part of a
settlement process made to complainant in conjunction with his union,
POPA (Patent Office Professional Association), and that complainant
is attempting to argue that a settlement attempt was discriminatory.
Regarding claims 7 and 8, the agency found that the performance rating
in question resulted in complainant's removal from agency employment;
and that because this removal was taken to arbitration, the reasons
that caused his remove (the performance rating), must be a part of that
arbitration process.
The agency dismissed claims 10 and 11 pursuant to � 1614.197(a)(4) on the
grounds that they states the same matter raised in a negotiated grievance
procedure that permits claims of discrimination to be raised. Regarding
claim 11, the agency noted that in his formal complaint, complainant
repeatedly stated that a lack of accommodation, and consideration of his
depression, resulted in his removal; that complainant's union raised this
matter in complainant's oral reply to the proposed removal; and that
the agency addressed this matter in its decision letter. The agency
found that complainant's "affirmative defense" addresses disability
discrimination connected to his removal, and "is linked and cannot be
separated" from the grievance relating to the removal.
Further, the agency dismissed reprisal as a basis. Specifically, the
agency noted that complainant had no prior EEO activity.
Claims 1 - 3
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
The Commission finds that the agency properly dismissed claims 1 -
3 on the grounds of untimely EEO Counselor contact. The alleged
discriminatory events occurred in July 2005 (received an oral warning
for his production), on October 17, 2005 (received a written warning for
production) and July 25, 2006 (was charged negative workflow points),
but that complainant did not initiate contact with an EEO Counselor until
December 8, 2006, which was beyond the forty-five (45) day limitation
period.
Claim 5
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).
Complainant claimed that he was discriminated against when on August 18,
2006 and on two other occasions, agency representatives made derogatory
comments to him. We determine that complainant did not suffer a personal
loss or harm regarding a term, condition or privilege of his employment.
Moreover, the Commission determines that the matters at issue in claim
5 are insufficient to state a claim of harassment.
Because we affirm the agency's dismissal of claim 5 for the reason stated
herein, we will not address alternative dismissal grounds.
Claim 6
Complainant claimed that he was discriminated against when on an
unspecified date, his within grade increase was denied. After a careful
review of the record, including the EEO Counselor's Report, we find
that the agency properly dismissed claim 6 pursuant to 29 C.F.R. �
1614.107(a)(2) because complainant did not bring this claim to the
attention of the EEO Counselor and it is not like or related to matters
for which he underwent EEO counseling.
Because we affirm the agency's dismissal of claim 6 for the reason
stated herein, we will not address alternative dismissal grounds.
Claims 7, 8 and 9
Complainant claimed that the was discriminated against when on
October 27, 2006, he received an "Unacceptable" rating on his Fiscal
Year 2006 Annual Performance Appraisal (claim 7); on November 27,
2006, he received a denial of his Fiscal Year 2006 Annual Performance
Appraisal reconsideration request (claim 8); and on November 16, 2006,
he was offered a Last Chance Agreement that did not provide him with
accommodation or a "hardship" consideration. The proper forum for
complainant to have raised his challenges to actions which occurred within
the arbitration process is within that forum itself. It is inappropriate
to now attempt to use the EEO process to collaterally attack actions which
occurred during the arbitration process. Therefore, we find that the
agency properly dismissed claims 7, 8 and 9 for failure to state a claim.
Claims 4, 10 and 11
Regarding the agency's dismissal of claim 4, we note that when a
complaint is filed on a proposed action and the agency subsequently
proceeds with the action, the action, the action is considered to have
merged with the proposal. See Siegel v. Department of Veterans Affairs,
EEOC Request No. 05960568 (October 10, 1997). We note that complainant's
claim regarding the Proposed Letter of Removal (claim 4), subsequently
merged into a claim of discriminatorily removal from federal employment
(claim 10).
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is
employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a
collective bargaining agreement that permits claims of discrimination to
be raised in a negotiated grievance procedure, a person wishing to file a
complaint or grievance on a matter of alleged employment discrimination
must elect to raise the matter under either part 1614 or the negotiated
grievance procedure, but not both. An aggrieved employee who files a
grievance with an agency whose negotiated agreement permits the acceptance
of grievance which alleged discrimination may not thereafter file a
complaint on the same matter under part 1614 irrespective of whether
the agency has informed the individual of the need to elect or whether
the grievance has raised an issue of discrimination.
Here, complainant claimed he was discriminated against when on December
27, 2006, he received a Letter of Removal (claim 10) and was denied
reasonable accommodation, including citation assistance, typing software
and a part-time work schedule (claim 11). We find that the record
indicates that prior to filing his EEO complaint; complainant filed
a grievance on August 25, 2006 concerning denial of his reasonable
accommodation request and January 3, 2007 concerning his removal,
with the agency raising the same matters as those in his EEO complaint,
pursuant to a collective bargaining agreement (Article 11) that permits
discrimination claims to be raised.
Reprisal as a basis
We find that the agency properly dismissed reprisal as a basis.
Specifically, we find that a review of the record reveals no evidence
of prior EEO activity by complainant.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (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
August 23, 2007
__________________
Date
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0120072617
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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