0120122971
12-26-2012
Jesus Clemente, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Jesus Clemente,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120122971
Agency No. EOI2012001931
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated June 21, 2012, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Immigration Judge at the Agency's San Diego Immigration Court facility in San Diego, California.
On March 6, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Hispanic), national origin (Puerto Rican), color (Brown), age (56 years old at time of incident), and reprisal for prior protected EEO activity when:
1. on July 18, 2011, Complainant was conditionally reassigned to the East Mesa Immigration Court; and
2. Complainant's supervisor denied him reasonable time off the immigration calendar to prepare for a civil court case against the Agency and an appellate case at the Merit Systems Protection Board (MSPB).
The Agency dismissed the claims on various grounds. Claim 1 was dismissed on the grounds of mootness, with the Agency finding that Complainant had only been transferred to the East Mesa Immigration Court from July to December 2011 and had returned to the San Diego Immigration Court thereafter. The Agency further found that the claim should be dismissed for stating the same claim as previously filed claims. With regard to claim 2, the Agency found that Complainant failed to state a claim because, while Complainant was entitled to reasonable time off to prepare for an EEO complaint, he was not entitled to time off to prepare for an appeal before the MSPB or for a civil court case.
The instant appeal from Complainant followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.107(a)(3), an agency may dismiss a complaint that was the basis of a civil suit decided by a United States District Court in which the Complainant was a party.
The record shows that on or about May 3, 2011, Complainant filed a lawsuit in the United States District Court for the District of Columbia (case number 1:1 l-cv-00833), which was subsequently transferred to the United States District Court for the Eastern District of Virginia (case number l:l 1-cv-897). The record shows that the matter of the transfer to East Mesa was addressed in the civil action. On November 15, 2011, the United States District Court for the Eastern District of Virginia granted the Agency's motion to dismiss in part and granted the Agency's motion for summary judgment. The court specifically held that the issue of the transfer was moot since the Agency had agreed to transfer Complainant back to San Diego the following month. We therefore find that claim 1 should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(3).
With regard to claim 2, we note that 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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Complainant alleges that he was denied reasonable time off to prepare for his civil court case and his MSPB appeal. We find that such a claim fails to state a claim under the 29 C.F.R. Part 1614 regulations because Complainant has not shown he incurred a present harm or loss with respect to a term, condition or privilege of employment. In this regard we note that, pursuant to 29 C.F.R.� 1614.605(b), complainants who file EEO complaints are entitled to a reasonable amount of official time to "prepare the complaint and respond to EEO or Agency requests for information." Complainant, however, has not shown that such an entitlement extends to those filing MSPB complaints or pursuing civil court cases. Moreover, to the extent such an entitlement exists, the administrative EEO process is not the appropriate forum to enforce those rights. Rather, these are matters that should be addressed to the MSPB or the court.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Dismissal.
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
December 26, 2012
__________________
Date
1 In correspondence dated August 22, 2012, the Agency states that the correct Agency No. is EOl-2012-00193 and not EOI-2011-00193 as listed elsewhere in the record.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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