0120110215
02-02-2012
Bienvenido R. Manzano, Complainant, v. Karen G. Mills, Administrator, Small Business Administration, Agency.
Bienvenido R. Manzano,
Complainant,
v.
Karen G. Mills,
Administrator,
Small Business Administration,
Agency.
Appeal No. 0120110215
Agency No. 06-10-054
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated September 8, 2010, 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. Upon review, the Commission finds
that Complainant's complaint was properly dismissed.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Procurement Center Representative in the Agency’s Office of
Government Contracting in Boston, Massachusetts. On July 23, 2010,
Complainant filed an EEO complaint alleging that the Agency subjected
him to discrimination on the bases of race (Filipino), national origin
(Philippines), color (brown), disability, and in reprisal for prior
protected EEO activity when:
1. On June 7, 2010, Complainant received a Letter of Reprimand for
Disrespectful Conduct;
2. On or about March 31, 2010, Complainant’s request for overnight
travel was denied; and,
3. On an unspecified date, Complainant’s request to change his telework
day was denied.
The Agency dismissed claim (1) pursuant to 29 C.F.R. § 1614.301(a) for
alleging a matter previously raised in a negotiated grievance procedure
that permits claims of discrimination. Further, the Agency dismissed
claim (2) pursuant to 29 C.F.R. § 1614.105(a)(1) for untimely EEO
counselor contact. The Agency determined that the alleged discriminatory
incident occurred on March 31, 2010, and Complainant did not contact
an EEO counselor until June 24, 2010, approximately 40 days beyond the
limitation period. Finally, the Agency dismissed claim (3) pursuant
to 29 C.F.R. § 1614.103(a) for failure to state a claim. The Agency
found that Complainant was not aggrieved as he failed to show that
he had suffered a loss affecting a term, condition, or privilege of
his employment for which there was a remedy. As a result, the Agency
dismissed the entire complaint.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the letter of reprimand was his
main concern and the other two claims were mainly examples of the
discriminatory treatment he received. Complainant concedes that he
submitted a claim regarding the Letter of Reprimand to the union as a
grievance and an EEO complaint, but claims that the union president was
too busy to properly assist him. Accordingly, Complainant requests that
the Commission reverse the Agency’s dismissal.
ANALYSIS AND FINDINGS
The Commission finds that the Agency properly dismissed the complaint.
As to claim (1), EEOC Regulation 29 C.F.R. § 1614.301(a) states that
when a person is employed by an Agency subject to U.S.C. § 7121(d)
and is covered by a collective bargaining agreement that permits claims
of discrimination to be raised in a negotiated grievance procedure, a
person wishing to file a complaint or a grievance on a matter of alleged
employment discrimination must elect to raise the matter under either part
1614 or the negotiated grievance procedure, but not both. An aggrieved
employee who files a grievance with an Agency, whose negotiated agreement
permits the acceptance of a grievance which alleged discrimination,
may not thereafter file a complaint on the same matter under part 1614,
irrespective of whether the Agency has informed the individual of the need
to elect or whether the grievance has raised an issue of discrimination.
The record reveals that Complainant filed a grievance regarding the
Letter of Reprimand alleged in claim (1) on June 23, 2010. As Complainant
filed his grievance before he filed the instant complaint, the Commission
finds that he elected the grievance process as the vehicle for pursuing
that claim. Therefore, the Commission finds that the Agency properly
dismissed claim (1) on the grounds that Complainant already raised the
matter in a negotiated grievance procedure that permitted allegations
of discrimination.
Regarding claim (2), EEOC Regulation 29 C.F.R § 1614.105(a)(1) requires
that an aggrieved person must contact an EEO Counselor within 45 days
of the matter alleged to be discriminatory. 29 C.F.R. § 1614.107(a)(2)
requires an agency to dismiss a complaint that fails to comply with the
applicable time limits contained in § 1614.105. The record discloses
that the discriminatory incident alleged in claim (2) occurred on
March 31, 2010, but Complainant did not initiate contact with an EEO
Counselor until June 24, 2010, which is 40 days beyond the forty-five
(45) day limitation period. On appeal, Complainant has presented no
persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact. Accordingly, the Agency's
dismissal of this claim was proper.
Finally, as to claim (3), 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. Dep’t of the Air
Force, EEOC Request No. 05931049 (Apr. 21, 1994).
Applying this standard, the Commission finds that claim (3) fails to
state a claim. Complainant claimed that on an unspecified date, his
supervisor denied his request to switch his telework day for that week.
The Commission finds that Complainant failed to show that he suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Dep’t of the Air Force,
EEOC Request No. 05931049 (Apr. 21, 1994). Moreover, to the extent
that Complainant is alleging unlawful harassment, the Commission finds
that the claim, even if proven to be true and viewed in a light most
favorable to Complainant, would not indicate that Complainant has been
subjected to harassment that was sufficiently severe or pervasive to
alter the conditions of employment. See Cobb v. Dep’t of the Treasury,
EEOC Request No. 05970077 (Mar. 13, 1997). Finally, the alleged action
was not of a type reasonably likely to deter Complainant or others from
engaging protected activity. Accordingly, 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 (Nov. 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
February 2, 2012
Date
2
0120110215
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013