Ruben F. Morales, Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionSep 9, 2009
0120092093 (E.E.O.C. Sep. 9, 2009)

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