0120111367
02-03-2012
Freddy Crespo, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, (Animal and Plant Health Inspection Services), Agency.
Freddy Crespo,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
(Animal and Plant Health Inspection Services),
Agency.
Appeal No. 0120111367
Agency No. APHIS200900614
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 29, 2010, dismissing his complaint alleging
unlawful employment discrimination because of a grievance that he filed
in November 2008. 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 PPQ Technician at the Agency’s San Juan Office in San Juan,
Puerto Rico.
On September 21, 2009, Complainant filed a formal complaint alleging
that the Agency subjected him to harassment in retaliation for a
grievance that he filed in November 2008. Complainant claimed that
after he filed the grievance, he was harassed and discriminated against
when his Supervisor issued him two Letters of Caution, subjected him
to character assassination, scrutinized his daily performance, made
derogatory comments about him in front of co-workers, questioned his
integrity, and scrutinized his leave requests.
Although the Report of Investigation (ROI) initially states that the claim
of reprisal was based on prior protected EEO activity, Complainant’s
affidavit makes clear that he had no prior EEO activity and that he
was alleging that his supervisor was discriminating against him and
harassing him because of his prior grievance. Specifically, Complainant
stated that he “[had] been subjected to discrimination and harassment
based on reprisal for filing a union grievance on his] 2008 performance
evaluation.” Complainant further indicated that he “was not subjected
to reprisal for any EEO complaint previously or for participating in the
EEO process previously,” because he had not done so. Complainant also
avers that he “did not raise any issue of discrimination in “[his]
union grievance… and that he believes that “all the harassment and
discriminatory treatment is related to the grievance” about his 2008
performance evaluation.
Following the investigation into his complaint, Complainant requested a
hearing before an EEOC Administrative Judge (AJ). On August 2, 2010, the
Agency filed a motion to dismiss for failure to state a claim with the
AJ, arguing that Complainant was not alleging retaliation for protected
activity under the anti-discrimination laws. Rather, his allegation
was more in the nature of an unfair labor practice for exercising his
collective bargaining rights.
On August 7, 2010, Complainant filed a motion to amend his complaint
to allege discrimination because of disability and gender, and to
consolidate it with another complaint he had filed on August 4, 2010.
Despite the fact that he stated in his original affidavit that he had
been discriminated against for filing a grievance, Complainant argued
that he was offered misguided advice about what to say in his complaint
by the EEO counselor. The motion to amend also raised several new claims
regarding the Supervisor’s unfair treatment, unfriendliness and alleged
favoritism towards non-disabled, younger, female employees, which were
also apparently the subject of his August 4, 2010 complaint. Complainant
thus claims that he has always believed he has been discriminated against
on the protected bases of disability and gender, although this motion
also alleges that the Supervisor began to treat Complainant differently
after the Supervisor’s mother saw Complainant being interviewed about
his restaurant business on a Puerto Rican television show.
The Agency filed an opposition to the motion on August 13, 2010. On
October 29, 2010, the AJ issued a decision concluding that Complainant’s
complaint, as originally constituted, failed to state a claim.
The instant appeal followed.
ANALYSIS AND FINDINGS
We find that the AJ’s decision not to accept Complainant’s proposed
amendment to his complaint should not be reversed. In accordance
with 29 C.F.R. § 1614.109, administrative judges have discretion over
matters pertaining to the development of a record and the conduct of
a hearing. Additionally, the Commission has held that it is within the
AJ’s discretion to permit the amendment of a complaint. See Sewell
v. Environmental Protection Agency, EEOC Appeal No. 01A50262 (April
8, 2005). The Commission has also held that, while AJs are generally
expected to rule expeditiously on motions made by the parties during
the discovery period, in the absence of an AJ ruling, the Complainant
may assume that the motion has been denied. See Byers v. Department
of Homeland Security, EEOC Appeal No. 0120082542 (November 7, 2008)
(explaining that when the AJ did not issue a revised Scheduling Notice
and Order, the complainant’s attorney “should have assumed that his
motion was denied.”). In this case, while the AJ did not expressly
deny the motion to amend, it is clear from the dismissal decision that
the motion was denied. There was no reason for Complainant to have
waited until after the investigation of his complaint was completed
to have decided to add disability and gender discrimination to his
claim and then argue that the complaint needed to be re-investigated.
These claims could, and should, have been raised in a timely manner,
but were not. Complainant offers no justification for the delay.
The Commission also concurs with the AJ’s decision that Complainant
failed to state a claim. EEOC Regulations require the dismissal of
complaints that fail to state a claim. See 29 C.F.R. § 1614.107(a)(1). To
state a claim, complainant must allege present harm inflicted on the
basis of race, sex, religion, national origin, age, disability, or
prior protected activity. See Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). Considering claims of reprisal,
EEOC regulations prohibit reprisal against an individual for opposing any
practice made unlawful by Title VII of the Civil Rights Act (Title VII)
(42 U.S.C. 2000e et seq.), the Equal Pay Act (29 U.S.C. 206(d)), the
Age Discrimination in Employment Act (ADEA) (29 U.S.C. 621 et seq.),
the Rehabilitation Act (29 U.S.C. 791 et seq.), or for participating
in any stage of administrative or judicial proceedings under these
statutes. 29 C.F.R. § 1614.101(b).
Here, Complainant stated that he was discriminated against in reprisal for
filing a grievance regarding his 2008 performance evaluation. We find that
the AJ properly determined that filing a grievance that contains no nexus
to the above referenced statutes is not a protected basis. Complainant’s
affidavit makes it clear he was claiming retaliation for filing
a grievance under the collective bargaining agreement, and also
indicated that he raised no claims of discrimination in that grievance.
The record reveals no other evidence of prior EEO activity. We find that
Complainant's claim of reprisal lacks the requisite prior EEO activity
necessary for stating a valid reprisal claim under the anti-discrimination
statutes. Therefore, we find that the AJ properly dismissed the complaint,
based solely on reprisal, for failure to state a claim in accordance
with EEOC Regulation 29 C.F.R. § 1614.107(a)(1).
Accordingly, the AJ’s decision dismissing Complainant's complaint,
and adopted by the Agency in its final order, 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
February 3, 2012
__________________
Date
2
0120111367
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111367