0120092093
09-09-2009
Ruben F. Morales, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Ruben F. Morales,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120092093
Agency No. P-2008-0395
DECISION
On April 15, 2009, complainant filed an appeal from the agency's March
27, 2009 final decision concerning his equal employment opportunity
(EEO) complaint alleging 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. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a).
At the relevant time, complainant worked as a Physician Assistant at
a detention center of the agency in Hawaii. In a formal EEO complaint
dated May 26, 2008, complainant alleged that the agency subjected him
to hostile work environment harassment on the bases of national origin
(Mexico), religion (Roman Catholic), disability (perceived mental),
age (over 40), and reprisal for prior protected EEO activity when (1)
on June 22, 2006, it denied him the opportunity to translate between
Spanish and English for a medical patient, (2) on January 24, 2008,
it issued a 20-day suspension against complainant1, (3) his supervisor
consistently told him that he smelled and made negative comments about
his appearance, (4) his supervisor and nurses frequently told him that
he is slow in completing his work, which suggests he has a developmental
problem, (5) his coworkers questioned his decision to fast rather than
eat lunch, (6) between April 21 and May 2, 2008, management delayed
giving him a limited duty assignment, (7) management failed to give
him workers' compensation forms and accused him of faking his injury,
(8) management gave him lower performance appraisal ratings, and (9)
management issued him a memorandum for working slower than others.
The agency conducted an investigation of complainant's complaint.
The Health Services Administrator (S1) stated as to (1) any staff with
multi-lingual skills is utilized for translation and usually called
through a language line, but he is unaware of the particular incident
alleged, (2) suspension was recommended based on progressive discipline
guidelines due to complainant's "failure to properly handle a medical
situation," (3) he noticed and other staff & inmates commented about
body odor from complainant so he asked if there was anything he could
do to help complainant to ensure positive representation of facility
medical staff, (4) medical staff is expected to see a certain number of
patients per day and the number complainant is able to see in an hour
indicates he moves slow, (5) colleagues asked complainant to participate
in staff potlucks because he used to do so and management told him that
he has to take a lunch break daily even if he does not eat during that
time because the nature of the work requires reenergizing of staff,
(6) complainant submitted medical documentation indicating that he
was seen on April 28, 2008 and, subsequently, was relieved of regular
duties and given desk tasks pending clarification of allowed duties,
(7) complainant reinjured himself in September 2008 and was in limited
duty status for an extended time, and (8) & (9) multiple counseling for
the same offense affects performance ratings but complainant received a
"fully successful" overall.
Regarding (2), the facility Warden (S2) stated that she sustained the
recommended suspension based on affidavits, complainant's oral and written
responses, and complainant's prior disciplinary actions. She noted that
she reduced the suspension from 30 days to 20 days. For (3) and (5)
respectively, S2 stated that she advised S1 to speak with complainant
one-on-one about his body odor concerns and she informed complainant
that legally he had to take a break if he worked more than eight hours.
On March 27, 2009, the agency issued a final decision dismissing (1) and
(8 - performance appraisals prior to December 2007 only) pursuant to 29
C.F.R. � 1614.107(a)(2). The agency stated that complainant initiated
EEO contact on February 6, 2008 for actions that occurred well outside of
the 45-day statutory time-frame. Further, for the remaining incidents,
the agency found that complainant failed to show that the alleged actions
were based on his protected classes. The instant appeal from complainant
followed. On appeal, complainant requested an extension for submission
of his brief pending possible settlement with the agency. This Commission
does not have a brief or evidence of settlement from complainant.
Based on the above, the mixed matter (the 20-day suspension) is not before
the Commission as it was settled before the MSPB in July 2009. However,
the remainder of the harassment claim is non-mixed, and the record is
void of evidence that the July 13, 2009 settlement encompassed that
claim or that the agency informed complainant of his right to request a
hearing on the non-mixed claim in accordance with 29 C.F.R. � 1614.108(f).
Hence, we VACATE the final agency decision and REMAND the matter to the
agency for issuance of a 29 C.F.R. � 1614.108(f) Notice or evidence of
settlement that withdraws the instant complaint in full.
ORDER
To the extent that it has not already done so, the agency is ordered to
process the remanded harassment claim in accordance with 29 C.F.R. �
1614.108(f). 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, if it has not already done so, 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. To the extent that the matter has already been
resolved, the agency shall submit evidence of an executed settlement
agreement withdrawing the instant complaint.
Documentation evidencing compliance with this Order 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 (R0408)
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 (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
September 9, 2009
__________________
Date
1 We note that, in the January 24, 2008 letter of suspension, the
agency informed complainant of the right to appeal the matter under
the negotiated grievance procedure, the Merit Systems Protection Board
(MSPB) appeal process, or the EEO complaint process. The letter noted
that only one procedure can be elected. The agency informed complainant
of the right to file an appeal with the MSPB on the suspension in its
final decision also.
Complainant filed an appeal with the MSPB, which was docketed as
SF-0752-09-0525-I-1. The matter settled on July 13, 2009.
??
??
??
??
2
0120092093
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092093