0120083490
01-13-2012
Sal Becerra, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Sal Becerra,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120083490
Agency No. 086106501491
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated July 9, 2008, dismissing his 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.
Upon review, the Commission finds that Complainant's complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a firefighter, GS-0081-07 at the Agency’s Naval Weapons Station
in Concord, California. On June 13, 2008, Complainant filed a formal
complaint alleging that the Agency subjected him to discrimination on the
bases of national origin (Hispanic) and in reprisal for prior protected
EEO activity when, on April 26, 2008, a manager directed Complainant’s
second line supervisor to order Complainant to change into his uniform
for roll call.
ANALYSIS AND FINDINGS
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).
The proper focus for dismissals of individual EEO complaints under 29
C.F.R. § 1614.107(a)(1) is on whether the complainant is allegedly
aggrieved due to an unlawful employment practice. Cobb v. Dept. of
Treasury, EEOC Request No. 05970077 (March 13, 1997). The question
as to whether a complainant is allegedly aggrieved due to an unlawful
employment practice for which there is a remedy under the federal equal
employment statutes, of necessity, requires a consideration of whether
the complainant has alleged unlawful discrimination regarding hiring,
termination, compensation, or other terms, conditions, or privileges
of employment. Terms, conditions, or privileges of employment include,
inter alia, promotion, demotion, discipline, reasonable accommodation,
appraisals, awards, training, benefits, assignments, overtime, leave,
tours of duty, etc. A complaint which alleges unlawful disparate treatment
regarding a specific term, condition, or privilege of employment should
not be dismissed for failure to state a claim. Id., see also Brown
v. Dep't of the Treas., EEOC Request No. 05950415 (Dec. 14, 1995)
(type of assignments).
In this case the Commission finds that the complaint fails to state a
claim under the EEOC regulations because Complainant failed to allege
that he suffered harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. The Commission
has held that a one-time requirement to wear a uniform on duty is not
sufficient to render a complainant aggrieved. Compare Guilbeaux v. United
States Postal Service, EEOC Appeal No. 0720050094 (August 6, 2008)
(sending an employee home to change into uniform on a single occasion
does not state a claim of discrimination or retaliation) and Wozniak
v, United States Postal Service, EEOC Appeal No. 01961798 (October 23,
1996) (allegation that agency applied its policy requiring uniforms in
a discriminatory manner states a claim). Here the allegation is that,
on a single occasion, Complainant was required to wear a uniform to
roll call. This is insufficient to state a claim.
CONCLUSION
For the foregoing reasons, the Agency's final decision dismissing
Complainant's complaint 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), at 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
January 13, 2012
__________________
Date
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0120083490
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083490