01a01740
10-19-2000
Pedro P. Mercado, Complainant, v. Janet Reno, Attorney General, Department of Justice, (Immigration and Naturalization Service) Agency.
Pedro P. Mercado v. Department of Justice
01A01740
October 19, 2000
Pedro P. Mercado, )
Complainant, )
)
v. ) Appeal No. 01A01740
) Agency No. INS-99-C141
Janet Reno, )
Attorney General, )
Department of Justice, )
(Immigration and Naturalization Service) )
Agency. )
____________________________________________)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.<1> The final agency decision was dated November
29, 1999. The appeal was postmarked December 22, 1999. Accordingly,
the appeal is timely (see 29 C.F.R. � 1614. 402 (a)), and is accepted
in accordance with 29 C.F.R. � 1614.405.
The issue on appeal is whether the agency properly dismissed complainant's
complaint on the grounds that his claim concerned a proposal to take a
personnel action.
On August 12, 1999, complainant filed a complaint alleging that he was
discriminated against on the bases of race (Hispanic)<2>, national origin
(Hispanic) and reprisal (prior (EEO activity) when on June 3, 1999,
he received a proposed suspension from duty without pay for a maximum
of fourteen (14) calendar days. The agency issued a final decision on
November 29, 1999, dismissing complainant's complaint on the grounds that
his claim concerned a proposal to take a personnel action. The agency
indicated that the proposed suspension had not been implemented.
Complainant, prior to his receiving the proposed suspension,
was removed from a management detail, after he was accused of and
investigated for sexual harassment. The proposed suspension resulted
from the investigation. In his complaint, complainant maintained that
the agency's actions were "[i]n retaliation for previously filing an
EEOC charge of discrimination." He also maintained that he was being
subjected to a "hostile work environment." On appeal, his attorney
argued that "the proposed 14 day suspension follows as a continuation
[of] discriminatory actions by the agency."
Pursuant to 29 C.F.R. � 1614.107(a)(5), an agency may dismiss a claim that
maintains a proposal to take a personnel action, or other preliminary
step to taking a personnel action, is discriminatory. The Commission
has held that proposed actions do not create a direct and personal
deprivation which would make a complainant an "aggrieved" employee
within the meaning of EEOC Regulations. See Charles v. Department
of the Treasury, EEOC Request No. 05910190 (February 25, 1991); Lewis
v. Department of the Interior, EEOC Request 05900095 (February 6, 1990).
If, however, a complainant alleges that the proposal or preliminary
step was taken for the purpose of harassing them for a prohibited reason,
the agency may not dismiss the issue as preliminary because, allegedly,
the matter already has adversely affected the complainant. See Henry
v. United States Postal Service, EEOC Request No. 05950229 (November
22, 1995); EEOC Management Directive 110 (MD-110) (November 9, 1999),
at 5-22, note 10. Upon review, we find that the agency's dismissal
of complainant's complaint was improper. A fair reading of his claim
indicates that he is maintaining that his proposed suspension was part
of a pattern of harassment.
Accordingly, the agency's decision to dismiss complainant's complaint
was improper and it is REVERSED. The complaint is REMANDED for further
processing in accordance with this decision and the ORDER below.
ORDER (E0400)
The agency is ORDERED to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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:
__10-19-00____________ __________________________________
DATE Carlton M. Hadden, Director
Office of Federal Operations
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Although complainant listed race (Hispanic) as a basis for his complaint,
the Commission considers Hispanic to be a national origin rather than
a race.