Scott B. Medina, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJul 28, 2000
01a02634 (E.E.O.C. Jul. 28, 2000)

01a02634

07-28-2000

Scott B. Medina, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Scott B. Medina v. Department of the Navy

01A02634

July 28, 2000

Scott B. Medina, )

Complainant, )

)

v. ) Appeal No. 01A02634

) Agency No. DON-00-242-005

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision dated January 31, 2000, 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.<1> The

appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be

codified at 29 C.F.R. � 1614.405).

Complainant contacted the EEO office regarding claims of discrimination

based on color (brown), national origin (Hispanic), and reprisal for

prior EEO activity. Informal efforts to resolve complainant's concerns

were unsuccessful. Accordingly, on December 20, 1999, complainant filed

a formal complaint.

The agency framed the complaint as follows:

(1) On 08/13/99 the watch supervisor recorded [complainant] UA

(Unauthorized Absence) even though [he] called in for sick leave on

08/12/99.

On 09/22/99 [complainant] was sent home by [his] supervisor and charged

LWOP (Leave Without Pay).

The agency issued a final agency decision dismissing the complaint for

failure to state a claim under 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)).

Specifically, the agency stated that complainant had been paid in full

for both days, and that he had not suffered any harm from the alleged

agency action.

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 only proper questions in determining whether an allegation is

within the purview of the EEO process are (1) whether the complainant

is an aggrieved employee and (2) whether he has alleged employment

discrimination covered by the EEO statutes. An employee is �aggrieved�

if he has suffered direct and personal deprivation at the hands

of the employer. See Hobson v. Department of the Navy, EEOC Request

No. 05891133 (March 2, 1990). In the instant case, complainant alleged

that, on two separate occasions, his supervisor improperly recorded

him UA (Unauthorized Absence) and charged him LWOP (Leave Without Pay).

These allegations are sufficient to render him an aggrieved employee.

Because complainant has alleged that the adverse actions were based on

his color, national origin, and reprisal for prior EEO activity, he

has raised an allegation within the purview of the EEOC regulations.

Moreover, the Commission notes, that the agency's articulated reason

for the action in dispute, i.e., that complainant was paid in full for

both days, improperly addresses the merits of complainant's complaint,

and is irrelevant to the procedural issue of whether he has stated a

justiciable claim under Title VII. See Osborne v. Department of the

Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United

States Postal Service, EEOC Request No. 05930220 (August 12, 1993);

Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642

(August 15, 1991). Accordingly, the agency's decision dismissing

complainant's complaint for failure to state a claim was improper.

On appeal, complainant contends that he was further discriminated against

after the filing of the present complaint when he was not selected for

several promotions. Complainant is advised that if he wishes to pursue,

through the EEO process, the additional allegation(s) raised for the first

time on appeal, he shall initiate contact with an EEO counselor within

fifteen days after he receives this decision. The Commission advises

the agency that if complainant seeks EEO counseling regarding the new

allegations within the above fifteen day period, the date complainant

filed the appeal statement in which he raised these allegations with

the agency shall be deemed to be the date of the initial EEO contact,

unless he previously contacted a counselor regarding these matters, in

which case the earlier date would serve as the EEO counselor contact date.

cf. Qatsha v. Department of the Navy, EEOC Request No. 05970201 (January

16, 1998).

Accordingly, the agency's decision to dismiss the complaint for failure to

state a claim is REVERSED and the complaint is REMANDED to the agency for

further processing in accordance with this decision and the Order below.

ORDER (E0400)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claims 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

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:

July 28, 2000

Date Carlton M. Hadden, Acting 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.