0120102194
06-29-2010
Ruby Ann Gomez, Complainant, v. Gary Locke, Secretary, Department of Commerce, (Bureau of the Census), Agency.
Ruby Ann Gomez,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(Bureau of the Census),
Agency.
Appeal No. 0120102194
Agency No. 10-63-00407D
DECISION
Upon review, we find that the Agency's decision dated March 25, 2010,
dismissing Complainant's complaint for failure to state a claim is proper
pursuant to 29 C.F.R. �1614.107(a)(1). The Agency's decision dismissing
the complaint is AFFIRMED.
BACKGROUND
In her complaint, filed on March 4, 2010, Complainant, an Assistant
Manager of Recruiting at the Agency's Corpus Christi Local Census
Office, alleged that she was subjected to harassment and retaliation for
submitting complaints to an identified Area/Regional Manager. Complaint
File (COM), at 7. In its decision, the Agency stated that Complainant
failed to state a claim within the purview of the EEO complaint process
since she failed to allege retaliation for either participation in, or
opposition to, any protected EEO statute. COM, at 115, 116. The Agency
further stated that its EEO tracking system, EEO track, revealed that
Complainant had no prior EEO activity within the Agency, and, therefore,
Complainant failed to state a claim of retaliation. COM, at 115.
ANALYSIS AND FINDINGS
The regulations prohibit retaliation against an individual for opposing
any practice made lawful by Title VII, EPA, the ADEA, the Rehabilitation
Act, or for participating in any stage of administrative or judicial
proceedings under these statutes. See, 29 C.F.R. � 1614.101(b).
After a review of the record, we find that Complainant alleged no basis
within the purview of the regulations. On appeal, Complainant contends
that her previously submitted complaints concerning management's abuse of
authority and preferential treatment to the Area Manager is a protected
activity under the Whistleblower Protection Act. However, we note that
violation of the Whistleblower Protection Act is not within the purview
of the EEO regulations; thus, it does not state a claim.
Accordingly, the Agency's final decision 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), 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
6/29/10
__________________
Date
2
0120102194
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013