Richard Arizpe v. Department of Transportation
01A50328
April 11, 2006
.
Richard Arizpe,
Complainant,
v.
Norman Y. Mineta, Secretary,
Department of Transportation,
Agency.
Appeal No. 01A50328
Agency No. DOT-5-99-5061
DECISION
Complainant filed a timely appeal from the agency's final action fully
implementing an EEOC Administrative Judge's (AJ) procedural dismissal
of his complaint.
The record contains an EEO Counselor's Report indicating that
complainant's initial EEO Counselor contact was February 20, 1999.
The EEO Counselor's report reflects that complainant underwent EEO
counseling on the issue that complainant was denied 76 out of 80 requested
hours of administrative leave to respond to the Commission regarding a
class complaint. The EEO Counselor's report indicates that complainant
also raised “several past issues” of alleged discrimination, including:
in November 1998, his permanent change of station move from San Antonio,
Texas, to Houston, Texas was terminated; and in September 1996, his
10-hour work week was terminated by his Supervisor. Informal efforts
to resolve his concerns were unsuccessful.
Complainant filed a formal complaint on April 26, 1999, claiming that
he was the victim of unlawful employment discrimination on the bases of
national origin (Hispanic) and in reprisal for prior EEO activity.
On February 23, 2001, the agency accepted for investigation the following
claim:
. . . on January 13, 1999,<1> you were denied a reasonable amount of
time to respond to the Commission regarding your class complaint.
The agency also determined that the instant complaint was comprised of
the following six claims:
1. During November/December 1998, the agency terminated the Permanent
Change of Station funding for complainant's relocation from San Antonio,
Texas, to Houston, Texas.
2. From November 27, 1997 to the present, the agency conspired to
obstruct justice by ordering the destruction of documents, which were
related to discrimination claims.
Further, the agency has (a) intentionally and willfully provided false
information to the investigator of complainant's claims; (b) argued
during an EEO hearing that complainant was asking (during a request for
a downgrade), for a guarantee of the first GS 13 position that would be
available, when complainant was actually requesting a downgrade and first
preference consideration for any GS 13 opening in San Antonio, Texas
in the future (an opportunity which was previously provided to another
employee two years previously0; and (c) the agency coerced witnesses
to make statements on this issue before an Administrative Judge (AJ)
of the Commission, when the agency was aware that the same practice
(of guaranteeing positions) was being granted to other employees who
were not of the same national origin as complainant.
3. The purpose of the reprisal was to create a hostile work environment
for complainant for the purpose of exerting excessive mental anguish while
complainant was contesting the discriminatory policies and practices
of the agency.
4. On September 25, 1996, agency management canceled complainant's
Adjusted Work Schedule of 10-hour days.
5. In 1995, the agency created/established new positions for specific
individuals to maintain the loyalty and silence of individuals concerning
the realignment of 1995, and intentionally did not establish positions
in key areas for the sole purpose of defending its illegal actions.
6. The agency refused to settle complainant's claims of discrimination
based on his national origin.
The agency dismissed additional claims (1) - (6). The agency acknowledged
that while the claim regarding the denial of official time for preparation
of a class complaint was timely raised, additional claims (1) - (6) “were
untimely and did not meet the criteria for a continuing violation.” The
agency noted the second portion of claim (2) related to the processing
of previous complaints that complainant had filed, and dismissed them
on the grounds that they expressed dissatisfaction with the processing
of those previous complaints. The agency further determined that the
matters it had identified as “claims two, three, five and six” were not
addressed in the EEO counseling process and were not like or related
to matters for which complainant underwent EEO counseling. The agency
also dismissed claim (1) on the alternative grounds that it addressed
the same matter that was raised in a prior complaint, identified by the
agency as Case No. 5-96-5078. The agency also dismissed claims (3) and
(6) on the alternative grounds of failure to state a claim.
Following the completion of the investigation of the claim concerning
the denial of official time, complainant requested a hearing before an
EEOC AJ. In a decision dated July 15, 2004, the AJ issued a decision
finding that complainant's claim (denial of a reasonable amount of time
to respond to the Commission regarding a class complaint) was an attempt
to collaterally attack the completed administrative adjudication of his
class complaint. In that regard, the AJ reasoned that complainant should
have raised his claim during the processing of the class complaint.
In response to complainant's motion to include the six previously
dismissed claims referenced above, and to amend his original complaint,
the AJ concluded that the agency properly dismissed the six claims.
Specifically, the AJ agreed with the agency that the claims were
untimely, did not meet the criteria for a continuing violation and
that all incidents proffered to support a hostile work environment were
isolated and not sufficiently severe or pervasive to alter complainant's
condition or terms of employment.
As an initial matter, the Commission agrees that the AJ's affirmance
of the agency's dismissal of the additional six claims (other than the
official time claim) raised in the instant complaint is supported by
the record. Accordingly, the agency's final decision dismissing those
six additional claims is AFFIRMED.
With respect to the denial of official time claim, we find that the
agency and the AJ improperly processed the claim as a separate complaint
of retaliation and national origin discrimination rather than processing
it in the manner set forth in Allegations of Dissatisfaction Regarding
Processing of Pending Complaints, EEO Management Directive (MD)-110, 5-27.
See Lynn Pollack v. Department of the Treasury, EEOC Appeal No. 07A10039
(March 8, 2002). EEOC regulation 29 C.F.R. § 1614.605 provides that
“if the complainant is an employee of the agency, he or she shall have
a reasonable amount of official time, if otherwise on duty, to prepare
the complaint and to respond to the agency and the EEOC requests for
information.” MD-110 provides that the appropriate remedy when an agency
improperly denies official time is an order restoring such personal
leave as the complainant may have used in lieu of official time.
Despite the processing errors in this matter, the Commission will
address the merits of complainant's official time claim based on the
agency's investigation into this matter. The record indicates that
complainant was the agent for a class complaint filed on June 26, 1998.
In a memorandum dated December 8, 1998, complainant requested 80 hours
of official time to be taken between 12/8/98 and 1/3/99 in order to
respond to “research and respond” to a December 4, 1998 information
request from an EEOC AJ in his class complaint. In a written decision
dated December 28, 1998, the agency issued a decision on the request,
granting four hours of administrative leave.
After carefully reviewing all the evidence of record, there is no doubt
that complainant was entitled to some amount of official time to respond
to the information request from the AJ. However, nothing submitted by
the complainant, to the agency at the time or to the Commission on appeal,
provides justification for the need for the specific hours requested.
Without something more, the Commission cannot find that the agency's
grant of only four hours of administrative leave was unreasonable.
Accordingly, the Commission will not order the restoration of any personal
leave taken by complainant during this period.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 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 (S0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 11, 2006
__________________
Date
1 The record indicates that the agency memorandum partially denying
complainant's request for 80 hours of official time was actually dated
December 28, 1998.
�