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4,891 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01-2013-0897-0500.pdf | 01-2013-0897-0500.pdf | PDF | application/pdf | 21,669 | November 13, 2012 | Appeal Number: 0120130897
Background:
At the time of events giving rise to this complaint, Complainant worked as a Customs and
Border Protection (CBP) Officer at the El Paso Port of Entry in El Paso, Texas. On October
4, 2011, Complainant requested 16 hours of administrative leave (official time) to complete an
EEO affidavit in conne ction with a complaint that had previously been dismissed by the
Agency and subsequently remanded by the Commission. On October 5, 2011, Complainant
emailed his second -level supervisor (S2) reiterating the request. Complainant then submitted
an SF -71 request for 16 hours of administrative leave, or eight hours each day on October 13 –
14, 2011. On October 12, 2011, Complainant was advised that he would be permitted to take
four hours of administrative leave on October 13, 2011 and four hours on October 14, 2011.
In response to this offer, Complainant requested, and was allowed, to take all of these 8
approved hours of administrative leave on October 14, 2011.
On October 20, 2011, S2 issued Complainant a memorandum of counseling regarding his use
of leav e and his job performance . The memorandum noted that Complainant had accumulated
56.5 hours of sic k leave and/or annual leave in l ieu of sick leave in conjunction with non-
scheduled days, numerous days of tardiness, and a significant number of unscheduled
absences. In addition, S2 cited several performance deficiencies including Complainant’s need
to improve time management and workload balance. S2 noted that the memorandum was not a
disciplinary action.
During Fiscal Year 2011, Complainant was assigned to the Foreign Trade Zone (FTZ) duty
location. At the end of the fiscal year, Complainant and other CBP O fficers were required to
participate in the Bids and Reassignment s Process to continue in their current special
assignment, or to be reassigned to other special assignments that they desired. On September
1, 2011, the announcements for Fiscal Year 2012 were distributed. Complainant submitted his
application , bidding on four different special assignments. Complainant bid to remain in the
FTZ assignment as his first choice and on three other special assignments as his second, third,
and fourth preferences . Complainant was not selected for any of the four assignments fo r
which he applied, and was subsequently reassigned to the Bridge of the Americas duty
location.
On January 5, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of sex
(male), disability, and in reprisal for prior protec ted EEO activity when:
1. On October 17, 2011, Complainant was directed to delete his request for official
time from the Customs Ov ertime Scheduling System ;
2. On or around October 19, 2011, Complainant was counseled for his performance
and attendance practices;
3. On October 19, 2011, Complainant was reassigned from the Foreign Trade Zone
(FTZ) to the Bridge of t he Americas duty location, as a result of a bid, rotation and
placement procedure.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an E qual
Employment Opportunity Commission Administrative Judge (AJ). Complai nant timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on October 15, 2012.
In her decision, as an initial matter, the AJ addressed Complainant’s claim that he never
received the AJ’s June 19, 2012 Acknowledgment and Order and that he needed an extension
of the discovery deadlines . The AJ noted that while Complainant advised that he had
“problems opening the file,” the Order was mailed to Complainant, not sent electroni cally. In
addition, the AJ noted that Complainant had filed five prior requests for a hearing before an
EEOC Administrative Judge, and therefore, had previously been issued five Acknowledgment
and Orders . As a result, the AJ found that Complainant was di singenuous in claiming that he
had never received the Acknowledgment and Order, and that he made such a claim because he
was aware that the deadline for initiating discovery had passed. Even i f that were not the case,
the AJ determined Complainant knew or should have known no later than July 6, 2012 ( when
he was contacted by the Agency’s repres entative regarding his schedule) and certainly no later
than July 9, 2012 ( when he was e mailed the Agency’s designation of representative) that the
administrative he aring process had begun. As a result, the AJ denied Complainant’s extension
request.
Turning to the merits of the complaint, the AJ assumed arguendo that Complainant had
established a prima facie case of discrimination and reprisal and found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to claim (1),
management believed that eight hours of administrative leave was reasonable for Complainant
to prepare his EEO affidavit. The AJ found that C omplainant failed to offer any evidence that
being limited to eight hours prevented him from completing the affidavit in a thorough and
timely manner . With respect to claim (2), between August 14, 2011 and October 19, 2011,
Complainant took 56.5 hours of sick leave and/or annual leave in lieu of sick leave and had
numerous instances of tardiness . S2 issued Complainant a written counseling a dvising him that
he had incurred a significant number of unscheduled absences and cautioning him that a failure
to correct the identified deficiencies would result in corrective action.
Finally, regarding claim (3), Compla inant submitted an application bidding on four different
special assignments during the Bids and Reassignments Process . According to Complainant,
due to a “technicality,” in late September, he and other CBP officers were allowed to resubmit
their applications. Complainant was not selected for any of the four assignments for which he
applied. Agency management stated that employees with earlier enter -on-duty dates were
selected for Complainant’s first (the FTZ special assignment), second , and third special
assignment bids, and his application failed to address the requisite knowledge, skills and
abilities for his fourth bid.
In attempting to establish that the Agency’s reasons for its actions were pretextual,
Complainant argued, as to claim (2), that “90% of the time” his leave req uests were approved.
The AJ noted that a pproval of leave requests does not preclude an employer from counseling
an employee where, as here, a pattern of leave abuse is detected .
Regarding claim (3), Complainant claimed that in FY 2011, there were four encumbered FTZ
positions, and that the Agency had a 25% “displacement policy” wherein, annually, 25% of
the FTZ CBP Officers were replaced. According to Complainant, for FY 2012, instead of
displacing 25%, or one, of the four FTZ CBP O fficers, the Agency reassigned 75%, or three
of the FTZ employees, including Complainant. The AJ determined that, although there may
have been four encumbered FTZ positions at the beginning of FY 2011, during FY 2011, one
employee retired and another was reassigned due to pr egnancy. That left only Complainant
and another employee occupying two of the four FTZ special assignment positions. Inasmuch
as it would have been impossible for the Agency to reassign the one -half a person that 25% of
two employees represented, it was appropriate for the Agency to reassign one of the two
employees who encumbered the FTZ positions at the end of FY 2011. Upon reassigning one
employee, in order to be fully staffed, the Agency was required to fill three FTZ positions,
which it did.
The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretext for unlawful discrimination or reprisal. In addition, the AJ determined that the
alleged incidents were insufficiently severe or pervasive to establish a hos tile work
environment. As a result, the AJ found that Complainant had not been subjected to
discrimination, reprisal , or a hostile work environment as alleged. The Agency subsequently
issued a final order fully implementing the AJ’s decision. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant again claims that he did not receive the AJ’s June 19, 2012
Acknowledgment and Order , and as a result, the EEO process was derailed . Further,
Complainant contends that the record shows that he was subjected to discrimination and
reprisal. Complainant argues that it would take a review of the whole investigation file to
understand the discrimination and hostile work environment that he suffered. Accordingly,
Complainant requests that the Commission reverse the final order.
Legal Analysis:
the Commission accepts Complainant’s appeal from the
Agency’s November 13, 2012 final order concerning his equal employment opportunity (EEO)
complaint alleging 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
Rehabi litation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the
Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Customs and
Border Protection (CBP) Officer at the El Paso Port of Entry in El Paso, Texas. On October
4, 2011, Complainant requested 16 hours of administrative leave (official time) to complete an
EEO affidavit in conne ction with a complaint that had previously been dismissed by the
Agency and subsequently remanded by the Commission. On October 5, 2011, Complainant
emailed his second -level supervisor (S2) reiterating the request. Complainant then submitted
an SF -71 request for 16 hours of administrative leave, or eight hours each day on October 13 –
14, 2011. On October 12, 2011, Complainant was advised that he would be permitted to take
four hours of administrative leave on October 13, 2011 and four hours on October 14, 2011.
In response to this offer, Complainant requested, and was allowed, to take all of these 8
approved hours of administrative leave on October 14, 2011.
On October 20, 2011, S2 issued Complainant a memorandum of counseling regarding his use
of leav e and his job performance . The memorandum noted that Complainant had accumulated
56.5 hours of sic k leave and/or annual leave in l ieu of sick leave in conjunction with non-
scheduled days, numerous days of tardiness, and a significant number of unscheduled
absences. In addition, S2 cited several performance deficiencies including Complainant’s need
to improve time management and workload balance. S2 noted that the memorandum was not a
disciplinary action.
During Fiscal Year 2011, Complainant was assigned to the Foreign Trade Zone (FTZ) duty
location. At the end of the fiscal year, Complainant and other CBP O fficers were required to
participate in the Bids and Reassignment s Process to continue in their current special
assignment, or to be reassigned to other special assignments that they desired. On September
1, 2011, the announcements for Fiscal Year 2012 were distributed. Complainant submitted his
application , bidding on four different special assignments. Complainant bid to remain in the
FTZ assignment as his first choice and on three other special assignments as his second, third,
and fourth preferences . Complainant was not selected for any of the four assignments fo r
which he applied, and was subsequently reassigned to the Bridge of the Americas duty
location.
On January 5, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of sex
(male), disability, and in reprisal for prior protec ted EEO activity when:
1. On October 17, 2011, Complainant was directed to delete his request for official
time from the Customs Ov ertime Scheduling System ;
2. On or around October 19, 2011, Complainant was counseled for his performance
and attendance practices;
3. On October 19, 2011, Complainant was reassigned from the Foreign Trade Zone
(FTZ) to the Bridge of t he Americas duty location, as a result of a bid, rotation and
placement procedure.
At the | ,
C
omplainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120130897
Hearing No. 451- 2012- 00194X
Agency No. HS -CBP-21504- 2012
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s November 13, 2012 final order concerning his equal employment opportunity (EEO)
complaint alleging 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
Rehabi litation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the
Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Customs and
Border Protection (CBP) Officer at the El Paso Port of Entry in El Paso, Texas. On October
4, 2011, Complainant requested 16 hours of administrative leave (official time) to complete an
EEO affidavit in conne ction with a complaint that had previously been dismissed by the
Agency and subsequently remanded by the Commission. On October 5, 2011, Complainant
emailed his second -level supervisor (S2) reiterating the request. Complainant then submitted
an SF -71 request for 16 hours of administrative leave, or eight hours each day on October 13 –
14, 2011. On October 12, 2011, Complainant was advised that he would be permitted to take
four hours of administrative leave on October 13, 2011 and four hours on October 14, 2011.
In response to this offer, Complainant requested, and was allowed, to take all of these 8
approved hours of administrative leave on October 14, 2011.
On October 20, 2011, S2 issued Complainant a memorandum of counseling regarding his use
of leav e and his job performance . The memorandum noted that Complainant had accumulated
56.5 hours of sic k leave and/or annual leave in l ieu of sick leave in conjunction with non-
scheduled days, numerous days of tardiness, and a significant number of unscheduled
absences. In addition, S2 cited several performance deficiencies including Complainant’s need
to improve time management and workload balance. S2 noted that the memorandum was not a
disciplinary action.
During Fiscal Year 2011, Complainant was assigned to the Foreign Trade Zone (FTZ) duty
location. At the end of the fiscal year, Complainant and other CBP O fficers were required to
participate in the Bids and Reassignment s Process to continue in their current special
assignment, or to be reassigned to other special assignments that they desired. On September
1, 2011, the announcements for Fiscal Year 2012 were distributed. Complainant submitted his
application , bidding on four different special assignments. Complainant bid to remain in the
FTZ assignment as his first choice and on three other special assignments as his second, third,
and fourth preferences . Complainant was not selected for any of the four assignments fo r
which he applied, and was subsequently reassigned to the Bridge of the Americas duty
location.
On January 5, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of sex
(male), disability, and in reprisal for prior protec ted EEO activity when:
1. On October 17, 2011, Complainant was directed to delete his request for official
time from the Customs Ov ertime Scheduling System ;
2. On or around October 19, 2011, Complainant was counseled for his performance
and attendance practices;
3. On October 19, 2011, Complainant was reassigned from the Foreign Trade Zone
(FTZ) to the Bridge of t he Americas duty location, as a result of a bid, rotation and
placement procedure.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an E qual
Employment Opportunity Commission Administrative Judge (AJ). Complai nant timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on October 15, 2012.
In her decision, as an initial matter, the AJ addressed Complainant’s claim that he never
received the AJ’s June 19, 2012 Acknowledgment and Order and that he needed an extension
of the discovery deadlines . The AJ noted that while Complainant advised that he had
“problems opening the file,” the Order was mailed to Complainant, not sent electroni cally. In
addition, the AJ noted that Complainant had filed five prior requests for a hearing before an
EEOC Administrative Judge, and therefore, had previously been issued five Acknowledgment
and Orders . As a result, the AJ found that Complainant was di singenuous in claiming that he
had never received the Acknowledgment and Order, and that he made such a claim because he
was aware that the deadline for initiating discovery had passed. Even i f that were not the case,
the AJ determined Complainant knew or should have known no later than July 6, 2012 ( when
he was contacted by the Agency’s repres entative regarding his schedule) and certainly no later
than July 9, 2012 ( when he was e mailed the Agency’s designation of representative) that the
administrative he aring process had begun. As a result, the AJ denied Complainant’s extension
request.
Turning to the merits of the complaint, the AJ assumed arguendo that Complainant had
established a prima facie case of discrimination and reprisal and found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to claim (1),
management believed that eight hours of administrative leave was reasonable for Complainant
to prepare his EEO affidavit. The AJ found that C omplainant failed to offer any evidence that
being limited to eight hours prevented him from completing the affidavit in a thorough and
timely manner . With respect to claim (2), between August 14, 2011 and October 19, 2011,
Complainant took 56.5 hours of sick leave and/or annual leave in lieu of sick leave and had
numerous instances of tardiness . S2 issued Complainant a written counseling a dvising him that
he had incurred a significant number of unscheduled absences and cautioning him that a failure
to correct the identified deficiencies would result in corrective action.
Finally, regarding claim (3), Compla inant submitted an application bidding on four different
special assignments during the Bids and Reassignments Process . According to Complainant,
due to a “technicality,” in late September, he and other CBP officers were allowed to resubmit
their applications. Complainant was not selected for any of the four assignments for which he
applied. Agency management stated that employees with earlier enter -on-duty dates were
selected for Complainant’s first (the FTZ special assignment), second , and third special
assignment bids, and his application failed to address the requisite knowledge, skills and
abilities for his fourth bid.
In attempting to establish that the Agency’s reasons for its actions were pretextual,
Complainant argued, as to claim (2), that “90% of the time” his leave req uests were approved.
The AJ noted that a pproval of leave requests does not preclude an employer from counseling
an employee where, as here, a pattern of leave abuse is detected .
Regarding claim (3), Complainant claimed that in FY 2011, there were four encumbered FTZ
positions, and that the Agency had a 25% “displacement policy” wherein, annually, 25% of
the FTZ CBP Officers were replaced. According to Complainant, for FY 2012, instead of
displacing 25%, or one, of the four FTZ CBP O fficers, the Agency reassigned 75%, or three
of the FTZ employees, including Complainant. The AJ determined that, although there may
have been four encumbered FTZ positions at the beginning of FY 2011, during FY 2011, one
employee retired and another was reassigned due to pr egnancy. That left only Complainant
and another employee occupying two of the four FTZ special assignment positions. Inasmuch
as it would have been impossible for the Agency to reassign the one -half a person that 25% of
two employees represented, it was appropriate for the Agency to reassign one of the two
employees who encumbered the FTZ positions at the end of FY 2011. Upon reassigning one
employee, in order to be fully staffed, the Agency was required to fill three FTZ positions,
which it did.
The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretext for unlawful discrimination or reprisal. In addition, the AJ determined that the
alleged incidents were insufficiently severe or pervasive to establish a hos tile work
environment. As a result, the AJ found that Complainant had not been subjected to
discrimination, reprisal , or a hostile work environment as alleged. The Agency subsequently
issued a final order fully implementing the AJ’s decision. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant again claims that he did not receive the AJ’s June 19, 2012
Acknowledgment and Order , and as a result, the EEO process was derailed . Further,
Complainant contends that the record shows that he was subjected to discrimination and
reprisal. Complainant argues that it would take a review of the whole investigation file to
understand the discrimination and hostile work environment that he suffered. Accordingly,
Complainant requests that the Commission reverse the final order.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non -
moving party. Celotex v. Catrett , 477 U.S. 317, 322- 23 (1986); Oliver v. Digital Equip.
Corp.
, 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.
Upon review, the Commission finds that there is no genuine issue of material fact. The record
has been adequa tely developed, Complainant was given ample notice of the Agency's motion
for summary judgment, he was given a comprehensive statement of the allegedly undisputed
material facts, he was given the opportunity to re spond to such a statement, and he was given
the opportunity to engage in discovery. The Commission further finds that the AJ did not
abuse her discretion in denying Complainant’s request for an extension for discovery requests.
The Commission find s that, even assuming all facts in favor of Complainant, a reasonable fact -
finder could not find in his favor, as explained below. Therefore, the Commission finds that
the AJ’s grant of summary judgment in favor of the Agency was appropriate.
Denial of Official Time (Claim One)
To the extent that Complainant alleges that he was denied official time in claim (1 ), the
Commission notes that EEOC Regulation 29 C.F.R. § 1614.605(b) provides that Agency employees shall be given a reasonable amount of official time, if otherwise on duty, to prepare
a complaint and to respond to Agency and EEO requests for information. The Commission
has stated that an allegation pertaining to the denial of official time states a separately
processable claim alleging a violation of the Commission's regul ations, without requiring a
determination of whether the action was motivated by discrimination.
See Edwards v. U.S.
Postal Serv. , EEOC Request No. 05960179 (Dec. 23, 1996). The Commission has the
authority to remedy a violation of 29 C.F.R. § 1614.605 without a finding of discrimination.
Id. To prevail on this claim, Complainant must show why the amount of time asked for was
necessary. See Complainant v. U. S. Postal Serv.
, EEO C Appeal No. 0120123527 (Jan. 31,
2013).
Complainant initially requested 16 hours of official time to complete an EEO affidavit
regarding a remanded complaint . ROI, at 160 -61. Complainant’s supervisor affirmed that on
October 12, 2011, Complainant was informed that he would be approved for four hours on
October 13, 2011 and October 14, 2011 for a total of eight hours. Id. at 329. S2 had
consulted with the Labor and Employee Relations Office regarding the request and determined that ei ght hours would be sufficient for Complainant to complete the affidavit.
Id. at 332.
Complainant subsequently requested to combine the four hours approved for each day and
utilize them on October 14, 2011. Id. at 329. The r equest was approved by S2, an d
Complainant utilize d all eight hours on October 14, 2011. Id
.
In this case, the Agency provided sufficient evidence to establish that it granted Complainant a
reasonable amount of official time to address EEO matters. Thus, the Commission finds that
Complainant was not denied official time. Additionally, t he Commission agrees with the AJ
that Complainant failed to produce any evidence that the amount of official time granted was insufficient.
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three- part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green ,
411 U.S. 792 (1973). Complainant must initially establish a prima fa cie case by demonstrating
that he was subjected to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. Corp. v. Waters , 438 U.S. 567, 576 (1978).
Proof of a prima facie case will vary depending o n the facts of the particular case. McDonnell
Douglas , 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine ,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods. , Inc. , 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks
,
509 U.S. 502, 519 (1993).
In the instant case, the Commission agrees with the AJ that assuming arguendo that he
established a prima facie case of discrimination and reprisal, Complainant failed to present
evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. In
particular, regarding claim (2), S2 affirmed that he issued the memorandum of counseling
based on Complainant’s unacceptable attendance practices and work performance deficiencies.
ROI, at 342, 451. S2 noted that Complainant had incurred a significant amount of sick leave
or annual leave in lieu of sick leave in conjunction with non- scheduled days and unscheduled
absences. Id. at 342. While the memorandum was not disciplinary in nature, S2 warned
Complainant that a failure to correct the identified deficiencies would result in corrective
action. Id
.
Finally, with respect to claim (3), during the Bids and Reassignments Process, employees with earlier enter -on-duty dates were selected for Complai nant’s first , second , and third special
assignment bids, and his application failed to address the requisite knowledge, skills and
abilities for his fourth bid. ROI, at 309. As a result, Complainant was reassigned to the
Bridge of Americas duty location.
Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant's protected classes were a factor in any of the Agency's actions. At
all times, the ultimate burden remains with Complainant to demonst rate by a preponderance of
the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. As
a result, the Commission finds that Co mplainant has not established that he was subjected to
discrimination or reprisal as alleged.
Hostile Work Environment Harassment
Finally, to the extent that Complainant contends that he was subjected to a hostile work
environment with respect to the matters herein, the Commission find that under the standards
set forth in Harris v. Forklift Systems, Inc. , 510 U.S. 17 (1993), Complai nant's claim of
harassment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc. , EEOC
Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by
the Commission’ s determination that Complainant has not es tablished that any of the actions
taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v.
U.S. Postal Service , EEOC Appeal No. 01982923 (Sep. 21, 2000). As a result, the
Commission finds that Complainant has not establis hed that he was subjected to discrimination,
reprisal, or a hostile work environment as alleged.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’ s final order, because the Admi nistrative Judge’s issuance of summary judgment
without a hearing was appropriate and a preponderance of the record evidence does not
establish that discrimination occurred.
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 reconside r, 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 rec onsideration
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 a fter 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 da ys 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.; th e 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
DateJuly 24, 2015 | [
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4,892 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120121511.txt | 0120121511.txt | TXT | text/plain | 10,355 | Morris R. Collins, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency. | January 30, 2012 | Appeal Number: 0120121511
Background:
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Gulfwinds Station in St. Petersburg, Florida. On January 17, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under the Rehabilitation Act when: On or about November 1, 2011, a former 204B (Acting Supervisor) did not return medical documents Complainant provided to him in 2008 or 2009. Complainant initiated EEO Counselor contact in this matter on December 9, 2011.
In its final decision, the Agency determined that the alleged discriminatory event occurred in 2008 or 2009, but Complainant did not initiate contact with an EEO Counselor until December 9, 2011, which is well beyond the forty-five (45) day limitation period. The Agency also addressed the merits of Complainant's claim.
CONTENTIONS ON APPEAL
Complainant asserts that his request for pre-complaint counseling was timely filed within 45 days of the supervisor refusing to return his medical files when told to do so by the Agency. To date, Complainant's former supervisor has not returned Complainant's medical files, which have been improperly maintained.
Legal Analysis:
Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Gulfwinds Station in St. Petersburg, Florida. On January 17, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under the Rehabilitation Act when: On or about November 1, 2011, a former 204B (Acting Supervisor) did not return medical documents Complainant provided to him in 2008 or 2009. Complainant initiated EEO Counselor contact in this matter on December 9, 2011.
In its final decision, the Agency determined that the alleged discriminatory event occurred in 2008 or 2009, but Complainant did not initiate contact with an EEO Counselor until December 9, 2011, which is well beyond the forty-five (45) day limitation period. The Agency also addressed the merits of Complainant's claim.
CONTENTIONS ON APPEAL
Complainant asserts that his request for pre-complaint counseling was timely filed within 45 days of the supervisor refusing to return his medical files when told to do so by the Agency. To date, Complainant's former supervisor has not returned Complainant's medical files, which have been improperly maintained.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
We find that while the medical records at issue may have been in the possession of Complainant's former supervisor since 2008 or 2009, this factor does not affect the forty-five (45) day limitation period in this matter. Instead, this limitation was triggered when on or about November 1, 2011, Complainant's former supervisor refused to return his medical files when told to do so by the Agency. Therefore, Complainant's EEO Counselor contact on December 9, 2011 was timely.
Final Decision:
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. | Morris R. Collins,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120121511
Agency No. 4G335003612
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 30, 2012, dismissing his complaint of unlawful employment discrimination in violation of 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 improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Gulfwinds Station in St. Petersburg, Florida. On January 17, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under the Rehabilitation Act when: On or about November 1, 2011, a former 204B (Acting Supervisor) did not return medical documents Complainant provided to him in 2008 or 2009. Complainant initiated EEO Counselor contact in this matter on December 9, 2011.
In its final decision, the Agency determined that the alleged discriminatory event occurred in 2008 or 2009, but Complainant did not initiate contact with an EEO Counselor until December 9, 2011, which is well beyond the forty-five (45) day limitation period. The Agency also addressed the merits of Complainant's claim.
CONTENTIONS ON APPEAL
Complainant asserts that his request for pre-complaint counseling was timely filed within 45 days of the supervisor refusing to return his medical files when told to do so by the Agency. To date, Complainant's former supervisor has not returned Complainant's medical files, which have been improperly maintained.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
We find that while the medical records at issue may have been in the possession of Complainant's former supervisor since 2008 or 2009, this factor does not affect the forty-five (45) day limitation period in this matter. Instead, this limitation was triggered when on or about November 1, 2011, Complainant's former supervisor refused to return his medical files when told to do so by the Agency. Therefore, Complainant's EEO Counselor contact on December 9, 2011 was timely.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 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 (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0610)
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 (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
August 3, 2012
__________________
Date
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4,893 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120121178.txt | 0120121178.txt | TXT | text/plain | 10,204 | Randy Botelho, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. | November 30, 2011 | Appeal Number: 0120121178
Background:
At the time of events giving rise to this complaint, Complainant worked as a Police Officer at the Agency's VAMC facility in Beckley, West Virginia.
On October 20, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability when he was not selected for the position of Detective, GS-0083-7/8, vacancy announcement number 05-11-02.
Briefly, the record indicates Complainant was informed of his non-selection for the position on May 9, 2011. Complainant asserts, in a sworn affidavit, that he was told by several officers that the Chief and Assistant Chief had informed them that Complainant came in second place in the selection process. It appears from the record that the union conducted an audit of the selection process and found several irregularities. Thereafter on July 15, 2011, Complainant was informed by the union that he had, in fact, been rated first. Complainant contacted the EEO counselor on July 18, 2011.
The Agency dismissed the complaint for untimely EEO counselor contact. The Agency stated that the date Complainant was informed of his non-selection, May 9, 2011, should toll the time for contacting an EEO counselor.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
In the instant case we find that Complainant, thinking he had come in second in the selection process, had no reason to suspect discrimination. Not until the union conducted its audit and found irregularities, did he have a reasonable suspicion of discrimination. Complainant promptly contacted an EEO counselor after being informed that, according to the union, he had scored first. As such, the Commission finds that under the circumstances of this case, Complainant timely contacted the EEO counselor. | Randy Botelho,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121178
Agency No. 200405172011104109
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 30, 2011, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Police Officer at the Agency's VAMC facility in Beckley, West Virginia.
On October 20, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability when he was not selected for the position of Detective, GS-0083-7/8, vacancy announcement number 05-11-02.
Briefly, the record indicates Complainant was informed of his non-selection for the position on May 9, 2011. Complainant asserts, in a sworn affidavit, that he was told by several officers that the Chief and Assistant Chief had informed them that Complainant came in second place in the selection process. It appears from the record that the union conducted an audit of the selection process and found several irregularities. Thereafter on July 15, 2011, Complainant was informed by the union that he had, in fact, been rated first. Complainant contacted the EEO counselor on July 18, 2011.
The Agency dismissed the complaint for untimely EEO counselor contact. The Agency stated that the date Complainant was informed of his non-selection, May 9, 2011, should toll the time for contacting an EEO counselor.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
In the instant case we find that Complainant, thinking he had come in second in the selection process, had no reason to suspect discrimination. Not until the union conducted its audit and found irregularities, did he have a reasonable suspicion of discrimination. Complainant promptly contacted an EEO counselor after being informed that, according to the union, he had scored first. As such, the Commission finds that under the circumstances of this case, Complainant timely contacted the EEO counselor.
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED and the matter is REMANDED as set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 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 (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0610)
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 (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
April 30, 2012
__________________
Date
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4,894 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120121171.txt | 0120121171.txt | TXT | text/plain | 9,771 | Roy L. Dumas, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency. | December 9, 2011 | Appeal Number: 0120121171
Background:
At the time of events giving rise to this complaint, Complainant worked as a Clerk at the Agency's LA P&DC facility in Los Angeles, California.
On October 6, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Black) and reprisal for prior protected EEO activity. The Agency identified the claims as being when his seniority rights were violated; he was spoken to in a disrespectful manner; he was forced to work in an area where he could not sit, and he was not allowed to work his bid assignment as posted.
On appeal, Complainant explained that he was forced to work outside his bid position resulting in the loss of over time. Complainant on appeal states he was denied the opportunity to work the position he had obtained through a bid. Complainant further stated he was not allowed to work manual letters (which was what he won the bid for) after he settled his EEO complaint.
On December 9, 2011, the Agency issued a final decision dismissing the complaint for failure to state a claim.
Legal Analysis:
the Commission agrees that those matters do not state a claim The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised his challenges to actions which involve the collective bargaining agreement is within that process.
With respect to being refused to work his bid assignment and being denied overtime, the Commission finds that these state a claim. These actions involving work assignments over a period of time concern a term and condition of employment. Further, Complainant is alleging he is being treated differently because others are being allowed to do the work that he should be doing. Finally, he alleges that this happened after he signed an EEO settlement agreement. Such actions would deter someone from engaging in the EEO process. As such, Complainant has shown an injury or harm 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 (April 21, 1994).
Final Decision:
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. | Roy L. Dumas,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120121171
Agency No. 1F901011111
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 9, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Clerk at the Agency's LA P&DC facility in Los Angeles, California.
On October 6, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Black) and reprisal for prior protected EEO activity. The Agency identified the claims as being when his seniority rights were violated; he was spoken to in a disrespectful manner; he was forced to work in an area where he could not sit, and he was not allowed to work his bid assignment as posted.
On appeal, Complainant explained that he was forced to work outside his bid position resulting in the loss of over time. Complainant on appeal states he was denied the opportunity to work the position he had obtained through a bid. Complainant further stated he was not allowed to work manual letters (which was what he won the bid for) after he settled his EEO complaint.
On December 9, 2011, the Agency issued a final decision dismissing the complaint for failure to state a claim.
ANALYSIS AND FINDINGS
To the extent Complainant is alleging a violation related to his seniority and other violations regarding the collective bargaining agreement, the Commission agrees that those matters do not state a claim The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised his challenges to actions which involve the collective bargaining agreement is within that process.
With respect to being refused to work his bid assignment and being denied overtime, the Commission finds that these state a claim. These actions involving work assignments over a period of time concern a term and condition of employment. Further, Complainant is alleging he is being treated differently because others are being allowed to do the work that he should be doing. Finally, he alleges that this happened after he signed an EEO settlement agreement. Such actions would deter someone from engaging in the EEO process. As such, Complainant has shown an injury or harm 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 (April 21, 1994).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is hereby remanded to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 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 (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0610)
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 (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
May 31, 2012
__________________
Date
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4,895 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120121129.pdf | 0120121129.pdf | PDF | application/pdf | 11,044 | , Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency. | October
28, 2011 | Appeal Number: 0120121129
Complaint Allegations:
In her complaint, dated August 24, 2009, Complainant alleged discrimination based on age (over 40), race (African American), sex (female), and in reprisal for prior EEO activit y when she was not selected for the position of Deputy Center Director for the Center for Disability , GS-14, in July 2009, and when she was subjected to a hostile work environment due to her prior EEO activity . At the conclusion of the investigation, Complainant requested a hearing before an AJ. The AJ, after a hearing, issued a decision finding no discrimination, which was implemented by the Agency in its final order.
Background:
In her complaint, dated August 24, 2009, Complainant alleged discrimination based on age
(over 40), race (African American), sex (female), and in reprisal for prior EEO activit y when
she was not selected for the position of Deputy Center Director for the Center for Disability ,
GS-14, in July 2009, and when she was subjected to a hostile work environment due to her
prior EEO activity . At the conclusion of the investigation, Complainant requested a hearing
before an AJ. The AJ, after a hearing, issued a decision finding no discrimination, which was
implemented by the Agency in its final order.
Legal Analysis:
Upon review, we find that C omplainant failed to show that her qualifications for the position at
issue were plainly superior to the selecte e’s qualifications or that the A gency’s actions were
motivated by discrimination. See Wasser v. Department of Labor , EEOC Request No.
05940058 (November 2, 1995). The AJ stated that Complainant failed to show by a
preponderance of the evidence that the Agency’s proffered reasons were pretextual. Upon
review, we find that the AJ’s factual findings of no discriminatory intent and no hostile work
environment are supported by substantial evidence in the r ecord. | ,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120121129
Hearing No. 410- 2010- 00218X
Agency No. ATL -09-0720- SSA
DECISION
Complainant filed an appeal from an EEOC Administrative Judge (AJ)’s decision dated October
28, 2011, which was subsequently adopted by the Agency in its final order dated January 17,
2012, finding no discrimination with regard to her complaint. For the following reasons, we
AFFIRM the Agency’s final order .
BACKGROUND
In her complaint, dated August 24, 2009, Complainant alleged discrimination based on age
(over 40), race (African American), sex (female), and in reprisal for prior EEO activit y when
she was not selected for the position of Deputy Center Director for the Center for Disability ,
GS-14, in July 2009, and when she was subjected to a hostile work environment due to her
prior EEO activity . At the conclusion of the investigation, Complainant requested a hearing
before an AJ. The AJ, after a hearing, issued a decision finding no discrimination, which was
implemented by the Agency in its final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post -hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board , 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman -Standard Co. v. Swint , 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See
EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999).
In this case, assuming arguendo that Com plainant had established a prima facie case of
discrimination, the AJ determined that t he Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. The AJ noted that on May 22, 2009, the Agency posted an
internal job advertis ement for the GS -14, Deputy Center Director position at issue under job
announcement number SG -261297- 09-LC in the Atlanta Regional Office Center for Disability
Operations. Complainant , a GS -13 Supervisory Management Analyst on the Management
Information Team, applied for the position and was one of 18 candidates who made the
certificate of eligible s. The AJ noted that the Director for the Center for Disability Operations
(the Center Director) reviewed the certificate and recommended her top two can didate s for
consideration. The Center Director stated that based on her knowledge and observation of
Complainant, Complainant lacked leadership or interpersonal skills for the position at issue.
She also indicated that Complainant lacked flexibility or willing ness to work with change to
achieve a successful outcome.
The Deputy Assistant Regional Commissioner of Management and Operations Support , a
selecting official for the position at issue, indicated that what she looked for in a candidate
when selecting the Deputy Center Director position at issue was : a high level of interpersonal
and communication skills ; the demonstration of executive behaviors, resourcefulness and
flexibility ; broad range of disability related experience; in-depth comprehensive knowledge of
the disability program ; strong leadership skills ; demonstrated ability to effectively manage
performance at the executive level ; and the commitment to achieving national and regional
goals and targets. The Deputy Assistant stated that Complainant was not selected because she
was not one of the top two candidates recommended by the Center Director. She also
indicated that she selected the selectee, a GS -14, Atlanta Management Development Program
(AMDP) Specialist, who was one of the top two candidates recommended by the Center
Director because he had a high level of leadership skills and a wider range of disability
programmatic experience. Furthermore, the Deputy Assistant stated that in 2008, the selectee
participated in the AMDP which provided him a wide variety of GS -14 work assignments.
The AJ indicated that it was u ndisputed that the selectee had more GS -13 level supervisory
experience than did Complainant and had more GS -14 experience than Complainant.
Furthermore, stated the AJ, it was also un disputed that the selectee participated in and excelled
in the AMDP prior to his selection . The AJ indicated that the selecting official and two other
managerial officials gave credible, unchallenged testimony that the selectee’s experience in the
AMDP was a significant contributing factor in his selection for the position at issue since it
offered participants the opportunity to serve in temporary GS -14 level supervisory position s.
The AJ stated that Complainant did no t apply for the AMDP and did not offer any evidence
indicating that she was prevented from doing so. On appeal, Complainant does not dispute
this.
Complainant also claimed that she was subjected to a hostile work environment due to her EEO
complaint filed against the Center Director . It appears that Complainant rai sed these matters
concerning her working conditions as background information ultimately leading to the
nonselection at issue. The AJ stated that these matters were subsequently raised in
Complainant’s prior EEO complaints or re solved and did not constitute harassment.
Specifically, t he AJ further indicated and we agree that Complainant failed to identify any
actions that had the effect of interfering with her job performance. On appeal, we note that
Complainant raises numerous incidents not related to the instant case but related to the matters
which were the subjects of previously filed EEO complaints that were already decided by the Agency.
Upon review, we find that C omplainant failed to show that her qualifications for the position at
issue were plainly superior to the selecte e’s qualifications or that the A gency’s actions were
motivated by discrimination. See Wasser v. Department of Labor , EEOC Request No.
05940058 (November 2, 1995). The AJ stated that Complainant failed to show by a
preponderance of the evidence that the Agency’s proffered reasons were pretextual. Upon
review, we find that the AJ’s factual findings of no discriminatory intent and no hostile work
environment are supported by substantial evidence in the r ecord.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted
on appeal, the Agency’s final order is AFFIRMED because the AJ’s decision is supported by substantial evidence.
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 decisi on 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, Washi ngton, 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
oppositi on 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 REQUE ST 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 w ithin 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 abo ve (“Right to
File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 20, 2013
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4,896 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120120294.txt | 0120120294.txt | TXT | text/plain | 9,570 | Cynthia Moon, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. | August 1, 2011 | Appeal Number: 0120120294
Background:
At the time of events giving rise to this complaint, Complainant worked
as Director at the Agencyâs College Office in Lemoore, California.
Believing that the Agency subjected her to unlawful discrimination,
Complainant contacted an Agency EEO Counselor to initiate the EEO
complaint process. On June 7, 2011, Complainant and the Agency entered
into a settlement agreement to resolve the matter. The settlement
agreement provided, in pertinent part, that:
(1) The Agency agrees to initiate the appropriate paperwork to pay
Complainant a lump sum of $ 5,000 within five work days.
(2) The Agency agrees to initiate the RPA for a quality step increase
to be effective June 13, 2011.
(3) The Agency agrees to change the 2009 NSPS rating to an overall
â5â rating and deleting the language related to the contributing
factors.
(4) The Agency agrees to identify available team building training
options within 30 days and will fund the training to be held within
FY2011 to include the Regional Director and the staff at the facility
in Lemoore, California.
(5) The Agency will make arrangements for a workplace Alternative
Dispute Resolution between the Regional Director and Complainant within
60 days.
(6) Complainant agrees to withdraw her EEO complaints.
By letter to the Agency dated July 27, 2011, Complainant alleged that
the Agency was in breach of the settlement agreement, and requested that
the Agency reinstate her complaints. Specifically, Complainant alleged
that the Agencyâs management continued to retaliate against her within
two weeks of signing the settlement agreement. Complainant stated that
on June 21, 2011, she was pulled aside by management as asked if she
had any objections to being moved from the Northwest to the Southwest
region. Complainant responded that it was âokay.â On June 30,
2011, Complainant emailed management to confirm the offer to move to
the Southwest Region. Following, it was announced that another Director
would be moved, not Complainant. Complainant believed that this action
constituted retaliation and resulted in her humiliation.
On August 1, 2011, the Agencyâs EEO Official issued a determination
regarding Complainantâs claim of breach via e-mail. The determination
e-mail concluded without specific discussion that the settlement
agreement was not breached. The Agency noted that the ADR session has
been scheduled for August 5, 2011, and the team training was set for
September 20-23, 2011. As such, the e-mail notified Complainant that
the Agency determined that the settlement was not breached and that
Complainant can submit an appeal to the Commission.
This appeal followed. On appeal, Complainant indicated that the Agency
has continued to subject her to retaliation and that her complaints
should be reinstated. The Agency provided the complaint file without
specific response to Complainantâs appeal.
Legal Analysis:
the Commission.
This appeal followed. On appeal, Complainant indicated that the Agency
has continued to subject her to retaliation and that her complaints
should be reinstated. The Agency provided the complaint file without
specific response to Complainantâs appeal.
ANALYSIS
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached
at any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a contract
between the employee and the Agency, to which ordinary rules of contract
construction apply. See Herrington v. Depât of Def., EEOC Request
No. 05960032 (December 9, 1996). The Commission has further held that
it is the intent of the parties as expressed in the contract, not some
unexpressed intention, that controls the contractâs construction.
Eggleston v. Depât of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv.,
EEOC Request No. 05910787 (December 2, 1991). This rule states that
if the writing appears to be plain and unambiguous on its face, its
meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Engâg Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case, Complainant asserted that she was subjected to
continued retaliation when management offered Complainant a reassignment
within weeks of signing the settlement agreement and then providing the
reassignment to another employee. She further indicated that she was
subjected to harassment by management. We observe that Complainant
appears to be alleging subsequent acts of reprisal and harassment
after the settlement was signed. We have held that claims of further
discrimination should be processed as a new, separate complaint, rather
than as a breach allegation. See Bindal v. Department of Veterans Affairs,
EEOC Request No. 05900225 (August 9, 1990). Therefore, if Complainant
wishes to pursue such new claims, then Complainant should raise her
claim of further reprisal and harassment as a new, separate EEO claim
instead of a breach allegation pursuant to 29 C.F.R. § 1614.105.
Final Decision:
Accordingly, the Agency's final decision finding no breach is AFFIRMED. | 
Cynthia Moon,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120120294
Agency No. 11-61092-0212
DECISION
Complainant filed an appeal with this Commission from a final decision
(FAD) by the Agency dated August 1, 2011, finding that it was in
compliance with the terms of the settlement agreement into which the
parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b);
and 29 C.F.R. § 1614.405.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as Director at the Agencyâs College Office in Lemoore, California.
Believing that the Agency subjected her to unlawful discrimination,
Complainant contacted an Agency EEO Counselor to initiate the EEO
complaint process. On June 7, 2011, Complainant and the Agency entered
into a settlement agreement to resolve the matter. The settlement
agreement provided, in pertinent part, that:
(1) The Agency agrees to initiate the appropriate paperwork to pay
Complainant a lump sum of $ 5,000 within five work days.
(2) The Agency agrees to initiate the RPA for a quality step increase
to be effective June 13, 2011.
(3) The Agency agrees to change the 2009 NSPS rating to an overall
â5â rating and deleting the language related to the contributing
factors.
(4) The Agency agrees to identify available team building training
options within 30 days and will fund the training to be held within
FY2011 to include the Regional Director and the staff at the facility
in Lemoore, California.
(5) The Agency will make arrangements for a workplace Alternative
Dispute Resolution between the Regional Director and Complainant within
60 days.
(6) Complainant agrees to withdraw her EEO complaints.
By letter to the Agency dated July 27, 2011, Complainant alleged that
the Agency was in breach of the settlement agreement, and requested that
the Agency reinstate her complaints. Specifically, Complainant alleged
that the Agencyâs management continued to retaliate against her within
two weeks of signing the settlement agreement. Complainant stated that
on June 21, 2011, she was pulled aside by management as asked if she
had any objections to being moved from the Northwest to the Southwest
region. Complainant responded that it was âokay.â On June 30,
2011, Complainant emailed management to confirm the offer to move to
the Southwest Region. Following, it was announced that another Director
would be moved, not Complainant. Complainant believed that this action
constituted retaliation and resulted in her humiliation.
On August 1, 2011, the Agencyâs EEO Official issued a determination
regarding Complainantâs claim of breach via e-mail. The determination
e-mail concluded without specific discussion that the settlement
agreement was not breached. The Agency noted that the ADR session has
been scheduled for August 5, 2011, and the team training was set for
September 20-23, 2011. As such, the e-mail notified Complainant that
the Agency determined that the settlement was not breached and that
Complainant can submit an appeal to the Commission.
This appeal followed. On appeal, Complainant indicated that the Agency
has continued to subject her to retaliation and that her complaints
should be reinstated. The Agency provided the complaint file without
specific response to Complainantâs appeal.
ANALYSIS
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached
at any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a contract
between the employee and the Agency, to which ordinary rules of contract
construction apply. See Herrington v. Depât of Def., EEOC Request
No. 05960032 (December 9, 1996). The Commission has further held that
it is the intent of the parties as expressed in the contract, not some
unexpressed intention, that controls the contractâs construction.
Eggleston v. Depât of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv.,
EEOC Request No. 05910787 (December 2, 1991). This rule states that
if the writing appears to be plain and unambiguous on its face, its
meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Engâg Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case, Complainant asserted that she was subjected to
continued retaliation when management offered Complainant a reassignment
within weeks of signing the settlement agreement and then providing the
reassignment to another employee. She further indicated that she was
subjected to harassment by management. We observe that Complainant
appears to be alleging subsequent acts of reprisal and harassment
after the settlement was signed. We have held that claims of further
discrimination should be processed as a new, separate complaint, rather
than as a breach allegation. See Bindal v. Department of Veterans Affairs,
EEOC Request No. 05900225 (August 9, 1990). Therefore, if Complainant
wishes to pursue such new claims, then Complainant should raise her
claim of further reprisal and harassment as a new, separate EEO claim
instead of a breach allegation pursuant to 29 C.F.R. § 1614.105.
CONCLUSION
Accordingly, the Agency's final decision finding no breach 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 partyâs 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).
COMPLAINANTâS 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. âAgencyâ or âdepartmentâ 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 (âRight to File a Civil Actionâ).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 29, 2012
__________________
Date
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4,897 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120114052.pdf | 0120114052.pdf | PDF | application/pdf | 11,425 | June 24, 2011 | Appeal Number: 0120114052
Background:
Complainant worked as a TV Production Specialist in the Agency’s Africa Division, International Broadcasting Division, Voi ce of America, in Washington, D C. On January 29,
2007, Complainant filed EEO Complaint #1 wherein she claimed that the Agency discriminated against her on the bases of her race (Caucasian), national origin (American), sex
(female), color (white), disability, age (58), and in reprisal for her prior protected EEO
activity. This comp laint concerned a Letter of Reprimand, not being selected to host a
magazine show and multiple incidents of harassment. In November 2007, Complainant filed
EEO Complaint #2 alleging discrimination on the same bases when she was issued a five -day
suspension.
The Agency issued a “partial dismissal” and consolidated the remaining claims for
investigation. At the conclusion of the investigation, the Agency provided Complainant with a
copy of the report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew
her request.
On August 28, 2008, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
Complainant appeal ed this first FAD, and in v. Broadcasting Board of
Governors , EEOC Appeal No. 0120090135 (January 5, 2010), the Commission concluded that
almost all of the dismissals were improper1
and that the claims decided on the merits were
inextricably intertwined with the dismissed claims. Therefore, th e Commission vacated the
Agency’s final decision and remanded the complaints for further processing. After the remand, Complainant filed EEO Complaint #3, solely alleging retaliation when she was placed
on a performance improvement plain (PIP), threatened with termination and denied reasonable accommodation. The Agency consolidated all three complaints, conducted further
investigations and then issued a second FAD.
In this second FAD, the Agency provided legitimate and nondiscriminatory reasons for its
actions. For example, the Letter of Reprimand was issued to Complainant in 2006 for
inappropriate behavior in the form of verbal abuse, screaming, shouting and other forms of aggressive behavior toward colleagues and supervisors. This discipline followed a 2005 Letter
of Admonishment and was motivated by multiple complaints about Complainant’s behavior,
both by coworkers as well as employees from outside the Africa Division.
Similarly, with regard t o the suspension, the Agency stated that the suspension was issued for
failure to comply with supervisory instructions, disrespectful behavior toward a supervisor and
inappropriate behavior in the workplace. The Agency maintained that no other employee in the Africa Division presented the same kind of problems as Complainant presented. The
Agency noted that Complainant was counseled, admonished and reprimanded on more than one occasion before she received the suspension. With regard to the PIP, Complainant was not meeting the production standards of her position and was informed that her failure to improve
could result in termination.
Concerning the denial of reasonable accommodation, the accommodation Complainant
requested was to be assigned an intern t o assist her in carrying equipment and a new computer
because she was limited in how much weight she could lift. Rather than straining its already limited resources by providing Complainant an assistant to accompany her on video shoots, the
Agency removed her video journalist duties and returned Complainant to her position of record
as a TV Production Specialist. The v ideo duties were not Complainant’s primary job
responsibility and in her position of record, Complainant would not be required to push, pu ll,
or lift objects more than fifteen pounds.
Finally, with regard to the multiple incidents of harassment, including denial of training, denial of proper equipment, being given less favorable assignments, having her work sabotaged and
being reprimanded for disruptive behavior, the Agency gave explanations for its actions in
1 The exception concerned hosting the magazine show.
each instance and stated that Complainant was treated no less favorably than others under
similar circumstances.
The FAD concluded that Complainant did not prove that the Agency’s explanations were not
worthy of belief and that she failed to prove that any of the conduct about which she
complained was unlawfully motivated. This appeal followed.
Legal Analysis:
the Commission AFFIRMS the Agency’s final
decision .
BACKGROUND
Complainant worked as a TV Production Specialist in the Agency’s Africa Division, International Broadcasting Division, Voi ce of America, in Washington, D C. On January 29,
2007, Complainant filed EEO Complaint #1 wherein she claimed that the Agency discriminated against her on the bases of her race (Caucasian), national origin (American), sex
(female), color (white), disability, age (58), and in reprisal for her prior protected EEO
activity. This comp laint concerned a Letter of Reprimand, not being selected to host a
magazine show and multiple incidents of harassment. In November 2007, Complainant filed
EEO Complaint #2 alleging discrimination on the same bases when she was issued a five -day
suspension.
The Agency issued a “partial dismissal” and consolidated the remaining claims for
investigation. At the | ,
C
omplainant,
v.
Dick Lobo,
Executive Director,
Broadcasting Board of Governors,
Agency.
Appeal No. 0120114052
Hearing No. 570- 2008- 00151X
Agency No. OCR -07-06, OCR -07-06A, OCR -10-15-RN
DECISION
Complainant filed an appeal from a June 24, 2011 final Agency decision (FAD) concerning her
equal employment opportunity (EEO) complaints alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.,
the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq., and
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. Our
review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final
decision .
BACKGROUND
Complainant worked as a TV Production Specialist in the Agency’s Africa Division, International Broadcasting Division, Voi ce of America, in Washington, D C. On January 29,
2007, Complainant filed EEO Complaint #1 wherein she claimed that the Agency discriminated against her on the bases of her race (Caucasian), national origin (American), sex
(female), color (white), disability, age (58), and in reprisal for her prior protected EEO
activity. This comp laint concerned a Letter of Reprimand, not being selected to host a
magazine show and multiple incidents of harassment. In November 2007, Complainant filed
EEO Complaint #2 alleging discrimination on the same bases when she was issued a five -day
suspension.
The Agency issued a “partial dismissal” and consolidated the remaining claims for
investigation. At the conclusion of the investigation, the Agency provided Complainant with a
copy of the report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew
her request.
On August 28, 2008, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
Complainant appeal ed this first FAD, and in v. Broadcasting Board of
Governors , EEOC Appeal No. 0120090135 (January 5, 2010), the Commission concluded that
almost all of the dismissals were improper1
and that the claims decided on the merits were
inextricably intertwined with the dismissed claims. Therefore, th e Commission vacated the
Agency’s final decision and remanded the complaints for further processing. After the remand, Complainant filed EEO Complaint #3, solely alleging retaliation when she was placed
on a performance improvement plain (PIP), threatened with termination and denied reasonable accommodation. The Agency consolidated all three complaints, conducted further
investigations and then issued a second FAD.
In this second FAD, the Agency provided legitimate and nondiscriminatory reasons for its
actions. For example, the Letter of Reprimand was issued to Complainant in 2006 for
inappropriate behavior in the form of verbal abuse, screaming, shouting and other forms of aggressive behavior toward colleagues and supervisors. This discipline followed a 2005 Letter
of Admonishment and was motivated by multiple complaints about Complainant’s behavior,
both by coworkers as well as employees from outside the Africa Division.
Similarly, with regard t o the suspension, the Agency stated that the suspension was issued for
failure to comply with supervisory instructions, disrespectful behavior toward a supervisor and
inappropriate behavior in the workplace. The Agency maintained that no other employee in the Africa Division presented the same kind of problems as Complainant presented. The
Agency noted that Complainant was counseled, admonished and reprimanded on more than one occasion before she received the suspension. With regard to the PIP, Complainant was not meeting the production standards of her position and was informed that her failure to improve
could result in termination.
Concerning the denial of reasonable accommodation, the accommodation Complainant
requested was to be assigned an intern t o assist her in carrying equipment and a new computer
because she was limited in how much weight she could lift. Rather than straining its already limited resources by providing Complainant an assistant to accompany her on video shoots, the
Agency removed her video journalist duties and returned Complainant to her position of record
as a TV Production Specialist. The v ideo duties were not Complainant’s primary job
responsibility and in her position of record, Complainant would not be required to push, pu ll,
or lift objects more than fifteen pounds.
Finally, with regard to the multiple incidents of harassment, including denial of training, denial of proper equipment, being given less favorable assignments, having her work sabotaged and
being reprimanded for disruptive behavior, the Agency gave explanations for its actions in
1 The exception concerned hosting the magazine show.
each instance and stated that Complainant was treated no less favorably than others under
similar circumstances.
The FAD concluded that Complainant did not prove that the Agency’s explanations were not
worthy of belief and that she failed to prove that any of the conduct about which she
complained was unlawfully motivated. This appeal followed.
ANALYSIS AND FINDINGS
To prove her harassment claim, complainant must establish that she was subjected to conduct
that was either so severe or so pervasive that a “reasonable person” in complainant’s position
would have found the conduct to be hostile or abusive. C omplainant must also prove that the
conduct was taken because of a pr otected basis, i.e. , in this case, race, national origin, sex,
color, disability, age or and in reprisal or prior protected activity. Only if complainant establishes
both of those elements, does the question of Agency liability for present itself.
Simila rly, to prove her disparate treatment claim concerning the discipline she received,
Complainant must prove that the Agency’s explanation for the discipline is a pretext for discrimination.
We have reviewed the record in its entirety and it is evident that Complainant and several
coworkers and managerial officials had a difficult relationship. There were several instances where Complainant found the work environment inconsistent with her efforts to maintain efficiency and productivity. We do not consider
all of these situations to be a reflection of
Complainant’s lack of interpersonal skills. C ertain coworkers occasionally displayed a lack of
professionalism. However, by and large, the evidence indicates that Complainant was a
difficult person to work wi th, conducted herself inappropriately, was not a team player and
unjustifiably believed that situations that were not favorable to her were simply part of a larger
plan to remove her from Agency employment.
The Commission does not have the benefit of an Administrative Judge’s credibility
determinations after a hearing; therefore, the Commission can only evaluate the facts based on
the weight of the evidence presented. The evidence presented herein does not establish that the
actions taken against Complainant were motivated by discrimination towards her protected
bases but rather were taken in response to the problems Complainant created in the workplace .
For this reason, her claims of harassment and disparate treatment discrimination both fail. T he
Commission AFFIRMS the FAD.
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 inter pretation 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 Oper ations (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 l egible 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 submit ted 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 t he 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 f ile 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
May 9, 2013
Date | [
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4,898 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120113668.txt | 0120113668.txt | TXT | text/plain | 9,935 | Milagros Halstead, Complainant, v. Chuck Hagel, Secretary, Department of Defense, Agency. | June 27, 2011 | Appeal Number: 0120113668
Background:
At the time of events giving rise to this complaint, Complainant worked as a Purchasing Agent at the Agency's Defense Media Activity facility in Riverside, California.
On May 25, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of age (64) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when from March 2004 to present she was denied training and several of her peers have been promoted but she has not.
According to the EEO Counselor's report, Complainant stated that in April 2011 several of her peers were promoted but she was not, and that this was because of preferential treatment by the supervisor. Complainant indicated that the Director prevented her from getting training which would enable her to be promoted.
On June 27, 2011, the Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency also dismissed the matter for untimely EEO counselor contact.
Legal Analysis:
THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
Final Decision:
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. | Milagros Halstead,
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120113668
Agency No. FY2011DMA002
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 27, 2011, dismissing her 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 a Purchasing Agent at the Agency's Defense Media Activity facility in Riverside, California.
On May 25, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of age (64) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when from March 2004 to present she was denied training and several of her peers have been promoted but she has not.
According to the EEO Counselor's report, Complainant stated that in April 2011 several of her peers were promoted but she was not, and that this was because of preferential treatment by the supervisor. Complainant indicated that the Director prevented her from getting training which would enable her to be promoted.
On June 27, 2011, the Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency also dismissed the matter for untimely EEO counselor contact.
ANALYSIS AND FINDINGS
In the instant case, the Agency dismissed the matter for failure to state a claim. We find that being denied training and being denied promotions state a claim. To the extent that the Agency states that Complainant's arguments about her credentials and certificates do not qualify her for a promotion, or that she did not apply for a promotion, such statements address the merits of Complainant's complaint without a proper investigation as required by the regulations and are irrelevant to the procedural issue of whether she has stated a viable claim under Title VII and the 29 C.F.R. Part 1614 regulations. 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). Complainant has alleged an injury or harm 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 (April 21, 1994).
As to the timeliness, Complainant stated that in April 2011 others in her work area were promoted and she was not. She contacted the EEO counselor on April 25, 2011. As such, her EEO counselor contact was timely. Additionally, Complainant argued that the denial of training was on going.
Complainant has shown an injury or harm 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 (April 21, 1994).
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is hereby remanded to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 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 (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0610)
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 (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
July 17, 2013
__________________
Date
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4,899 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120113121.txt | 0120113121.txt | TXT | text/plain | 9,306 | Naheed Saleem, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. | May 31, 2011 | Appeal Number: 0120113121
Background:
At the time of events giving rise to this complaint, Complainant worked
as a Supervisory Audiologist at the Agencyâs DeWtt Army Community
Hospital in Fort Belvoir, Virginia.
On April 28, 2011, Complainant filed a formal complaint alleging that the
Agency subjected her to discrimination on the bases of national origin
(Pakistan), sex (female), and religion (Muslim) when on January 13,
she received a notice of proposed removal dated December 20, 2010 that
forced her to resign from her position effective January 17, 2011.
In her formal complaint, Complainant stated that she had been subjected
to a pattern of discrimination including employees spying on her, being
investigated without being told why, being placed on administrative
leave that commenced in January 2010. Complainant alleged she was
constructively discharged.
The Agency dismissed the matter for untimely EEO counselor contact. The
Agency stated that Complainant submitted her letter alleging constructive
discharge on January 14, 2011, but did not contact an EEO counselor
until March 2, 2011. The Agency stated that Complainantâs contact
was 2 days late.
Legal Analysis:
Upon review, the Commission finds that Complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for
untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Supervisory Audiologist at the Agencyâs DeWtt Army Community
Hospital in Fort Belvoir, Virginia.
On April 28, 2011, Complainant filed a formal complaint alleging that the
Agency subjected her to discrimination on the bases of national origin
(Pakistan), sex (female), and religion (Muslim) when on January 13,
she received a notice of proposed removal dated December 20, 2010 that
forced her to resign from her position effective January 17, 2011.
In her formal complaint, Complainant stated that she had been subjected
to a pattern of discrimination including employees spying on her, being
investigated without being told why, being placed on administrative
leave that commenced in January 2010. Complainant alleged she was
constructively discharged.
The Agency dismissed the matter for untimely EEO counselor contact. The
Agency stated that Complainant submitted her letter alleging constructive
discharge on January 14, 2011, but did not contact an EEO counselor
until March 2, 2011. The Agency stated that Complainantâs contact
was 2 days late.
ANALYSIS AND FINDINGS
In the instant case, Complainantâs January 14, 2011 letter indicated
that her constructive discharge/resignation was not effective until
January 17, 2010. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) states
that an aggrieved person must contact an EEO counselor within 45 days of
the effective date of a personnel action. In this case Complainantâs
resignation was not effective until January 17, 2011.
Since the alleged discriminatory event occurred on January 17, 2011,
and Complainant initiated contact with an EEO Counselor on March 2,
2011, her contact is within the forty-five (45) day limitation period. | 
Naheed Saleem,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120113121
Agency No. ARBELVOIR11MAR00985
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated May 31, 2011, dismissing her 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.
Upon review, the Commission finds that Complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for
untimely EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Supervisory Audiologist at the Agencyâs DeWtt Army Community
Hospital in Fort Belvoir, Virginia.
On April 28, 2011, Complainant filed a formal complaint alleging that the
Agency subjected her to discrimination on the bases of national origin
(Pakistan), sex (female), and religion (Muslim) when on January 13,
she received a notice of proposed removal dated December 20, 2010 that
forced her to resign from her position effective January 17, 2011.
In her formal complaint, Complainant stated that she had been subjected
to a pattern of discrimination including employees spying on her, being
investigated without being told why, being placed on administrative
leave that commenced in January 2010. Complainant alleged she was
constructively discharged.
The Agency dismissed the matter for untimely EEO counselor contact. The
Agency stated that Complainant submitted her letter alleging constructive
discharge on January 14, 2011, but did not contact an EEO counselor
until March 2, 2011. The Agency stated that Complainantâs contact
was 2 days late.
ANALYSIS AND FINDINGS
In the instant case, Complainantâs January 14, 2011 letter indicated
that her constructive discharge/resignation was not effective until
January 17, 2010. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) states
that an aggrieved person must contact an EEO counselor within 45 days of
the effective date of a personnel action. In this case Complainantâs
resignation was not effective until January 17, 2011.
Since the alleged discriminatory event occurred on January 17, 2011,
and Complainant initiated contact with an EEO Counselor on March 2,
2011, her contact is within the forty-five (45) day limitation period.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is VACATED and the matter is REMANDED for further processing
as set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded claims, including her
constructive discharge and beong subjected to a pattern of discrimination,
in accordance with 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 Complainantâs request.
A copy of the Agencyâs 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 COMMISSIONâS DECISION (K0610)
Compliance with the Commissionâs 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 77960, Washington, DC
20013. The Agencyâs 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 Commissionâs order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §Â
1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commissionâs order prior to or following
an administrative petition for enforcement. See 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 âRight to File A Civil
Action.â 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) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
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 partyâs 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).
COMPLAINANTâS RIGHT TO FILE A CIVIL ACTION (R0610)
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.
âAgencyâ or âdepartmentâ 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 (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 (âRight to File A Civil Actionâ).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 4, 2011
__________________
Date
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4,900 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120112886.r.txt | 0120112886.r.txt | TXT | text/plain | 10,329 | Karl R. Gray, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency. | April 14, 2011 | Appeal Number: 0120112886
Background:
During the period at issue, Complainant worked as a Letter Carrier at the Agency's Howell Mill Post Office facility in Atlanta, Georgia. On March 21, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was the victim of unlawful employment discrimination in reprisal for prior protected activity when:
From January 5, 2011, to January 8, 2011, the Agency charged Complainant with Absent Without Leave (AWOL) for arriving late to work.
The record reveals Complainant has filed multiple EEO complaints against the Agency. Complainant alleges that his supervisor is aware of his past EEO activity because he has requested time off to process these complaints.
On April 14, 2011, the Agency issued a final decision dismissing the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Specifically, the Agency determined that Complainant was never actually charged AWOL or any other disciplinary action. The Agency therefore concluded that Complainant was not an aggrieved employee, i.e., he did not suffer a present 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 (April 21, 1994).
CONTENTIONS ON APPEAL
Complainant, through counsel, argues that a complainant states a claim of retaliatory discrimination by showing adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the complainant or others from engaging in protected activity.
In response, the Agency stands by the reasoning set forth in its final decision and argues that Complainant has failed to demonstrate that his supervisor's actions were such that it would reasonably deter Complainant from engaging in protected activity.
Legal Analysis:
THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. | Karl R. Gray,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120112886
Agency No. 4H-300-0130-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 14, 2011, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as a Letter Carrier at the Agency's Howell Mill Post Office facility in Atlanta, Georgia. On March 21, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was the victim of unlawful employment discrimination in reprisal for prior protected activity when:
From January 5, 2011, to January 8, 2011, the Agency charged Complainant with Absent Without Leave (AWOL) for arriving late to work.
The record reveals Complainant has filed multiple EEO complaints against the Agency. Complainant alleges that his supervisor is aware of his past EEO activity because he has requested time off to process these complaints.
On April 14, 2011, the Agency issued a final decision dismissing the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Specifically, the Agency determined that Complainant was never actually charged AWOL or any other disciplinary action. The Agency therefore concluded that Complainant was not an aggrieved employee, i.e., he did not suffer a present 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 (April 21, 1994).
CONTENTIONS ON APPEAL
Complainant, through counsel, argues that a complainant states a claim of retaliatory discrimination by showing adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the complainant or others from engaging in protected activity.
In response, the Agency stands by the reasoning set forth in its final decision and argues that Complainant has failed to demonstrate that his supervisor's actions were such that it would reasonably deter Complainant from engaging in protected activity.
ANALYSIS AND FINDINGS
Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000).
In this case, Complainant has shown that he engaged in prior protected EEO activity and that his supervisor charged him with AWOL for arriving 8 to 10 minutes late on several occasions. Complainant alleges that his supervisor was aware of his prior EEO activity when she charged him AWOL, even though the charge was not actually implemented.1 Complainant's claim states a viable claim of retaliatory discrimination.
CONCLUSION
The Agency's final decision dismissing Complainant's formal complaint is REVERSED. The complaint is REMANDED to the Agency for further processing in accordance with this decision and the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 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 (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0610)
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 (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
October 17, 2011
__________________
Date
1 The EEO Counselor's report reveals that Complainant's supervisor agreed with the union steward to charge the time to partial day without leave (late), and that Complainant ultimately worked a full tour each day.
------------------------------------------------------------
------------------------------------------------------------
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0.015138059854507446,
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0.0009531599935144186,
-0.013449189253151417,
-... |
4,901 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120112099.txt | 0120112099.txt | TXT | text/plain | 9,391 | Robert A. Scrivner, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. | February 8, 2011 | Appeal Number: 0120112099
Background:
At the time of events giving rise to this complaint, Complainant worked
at the Agencyâs McAlester Army Ammunition Plant facility in McAlester,
Oklahoma.
Believing that the Agency subjected him to unlawful discrimination,
Complainant contacted an Agency EEO Counselor to initiate the EEO
complaint process. On November 12, 2010, Complainant and the Agency
entered into a settlement agreement to resolve the matter. The settlement
agreement provided, in pertinent part, that:
(2) Complainant also agrees to provide the Agency with a medical release
signed by a licensed physician which specifically describes his physical
work limitations/ restrictions, if any.
(3) Upon receipt of the medical release, the Agency will evaluate the
restrictions and determine a position which meets those restrictions in
which to place Complainant.
(4) Subject to the requirements of paragraph (2), the Agency agrees to
provide Complainant with an official written job offer. This written
job offer will describe the position offered, the amount of salary and
the time allowed to accept or decline the offer.
(5) If Complainant is reemployed at a lower grade or pay level than
previously held. Office of Workers' Compensation Program (OWCP) will make
up the difference by determining and paying loss of wage-earning capacity
(LEWC) benefits.
By letter to the Agency dated January 9, 2011, Complainant alleged that
the Agency was in breach of the settlement agreement, and requested
that the Agency specifically implement its terms. Complainant alleged
that the Agency failed to provide him with a written job offer as
specified in provision (4) of the settlement agreement. Complainant did
concede that he did receive a job offer on December 1, 2010, via OWCP.
However, Complainant indicated that the job offer did not include the
EEO complaint number. As such, Complainant argued that the Agency failed
to comply with the settlement agreement.
In its February 8, 2011 FAD, the Agency concluded it had complied
with the settlement agreement. The Agency indicated that it provided
Complainant with a job offer. Further, the Agency asserted that the
settlement agreement acknowledged that Complainant had an OWCP claim as
evidenced by provision (5). Further, in order for the Agency to comply
with provision (4), the Agency needed to coordinate with OWCP in order
to comply with provision (5) of the settlement agreement. Therefore,
the Agency concluded that it provided Complainant with a job offer and
has not breached the settlement agreement.
Complainant appealed asserting that the agreement was breached because
the job offer did not refer to the settlement agreement. We note that
Complainant does not challenge the terms of the job offer, merely that
the offer failed to include the EEO complaint number.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached
at any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a contract
between the employee and the Agency, to which ordinary rules of contract
construction apply. See Herrington v. Depât of Def., EEOC Request
No. 05960032 (December 9, 1996). The Commission has further held that
it is the intent of the parties as expressed in the contract, not some
unexpressed intention, that controls the contractâs construction.
Eggleston v. Depât of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv.,
EEOC Request No. 05910787 (December 2, 1991). This rule states that
if the writing appears to be plain and unambiguous on its face, its
meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Engâg Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case, we find that the Agency has complied with the
settlement agreement. Complainant conceded he received a job offer
via OWCP in December 2010. Complainant has not asserted that the job
offer failed to accommodate his medical condition. The only reason
Complainant provided for alleging breach was that the job offer did not
have Complainantâs EEO complaint number on it and was offered via OWCP.
However, the Agency persuasively argues that the job offer had to be
coordinated with OWCP as evidenced by the language of provision (5).
We find that the December 2010 job offer was in compliance with provision
(4) of the settlement agreement. | 
Robert A. Scrivner,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120112099
Agency No. ARMCAAP09OCT04829
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the Agency dated February 8, 2011, finding that it was
in compliance with the terms of the settlement agreement into which the
parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b);
and 29 C.F.R. § 1614.405.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
at the Agencyâs McAlester Army Ammunition Plant facility in McAlester,
Oklahoma.
Believing that the Agency subjected him to unlawful discrimination,
Complainant contacted an Agency EEO Counselor to initiate the EEO
complaint process. On November 12, 2010, Complainant and the Agency
entered into a settlement agreement to resolve the matter. The settlement
agreement provided, in pertinent part, that:
(2) Complainant also agrees to provide the Agency with a medical release
signed by a licensed physician which specifically describes his physical
work limitations/ restrictions, if any.
(3) Upon receipt of the medical release, the Agency will evaluate the
restrictions and determine a position which meets those restrictions in
which to place Complainant.
(4) Subject to the requirements of paragraph (2), the Agency agrees to
provide Complainant with an official written job offer. This written
job offer will describe the position offered, the amount of salary and
the time allowed to accept or decline the offer.
(5) If Complainant is reemployed at a lower grade or pay level than
previously held. Office of Workers' Compensation Program (OWCP) will make
up the difference by determining and paying loss of wage-earning capacity
(LEWC) benefits.
By letter to the Agency dated January 9, 2011, Complainant alleged that
the Agency was in breach of the settlement agreement, and requested
that the Agency specifically implement its terms. Complainant alleged
that the Agency failed to provide him with a written job offer as
specified in provision (4) of the settlement agreement. Complainant did
concede that he did receive a job offer on December 1, 2010, via OWCP.
However, Complainant indicated that the job offer did not include the
EEO complaint number. As such, Complainant argued that the Agency failed
to comply with the settlement agreement.
In its February 8, 2011 FAD, the Agency concluded it had complied
with the settlement agreement. The Agency indicated that it provided
Complainant with a job offer. Further, the Agency asserted that the
settlement agreement acknowledged that Complainant had an OWCP claim as
evidenced by provision (5). Further, in order for the Agency to comply
with provision (4), the Agency needed to coordinate with OWCP in order
to comply with provision (5) of the settlement agreement. Therefore,
the Agency concluded that it provided Complainant with a job offer and
has not breached the settlement agreement.
Complainant appealed asserting that the agreement was breached because
the job offer did not refer to the settlement agreement. We note that
Complainant does not challenge the terms of the job offer, merely that
the offer failed to include the EEO complaint number.
ANALYSIS
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached
at any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a contract
between the employee and the Agency, to which ordinary rules of contract
construction apply. See Herrington v. Depât of Def., EEOC Request
No. 05960032 (December 9, 1996). The Commission has further held that
it is the intent of the parties as expressed in the contract, not some
unexpressed intention, that controls the contractâs construction.
Eggleston v. Depât of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv.,
EEOC Request No. 05910787 (December 2, 1991). This rule states that
if the writing appears to be plain and unambiguous on its face, its
meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Engâg Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case, we find that the Agency has complied with the
settlement agreement. Complainant conceded he received a job offer
via OWCP in December 2010. Complainant has not asserted that the job
offer failed to accommodate his medical condition. The only reason
Complainant provided for alleging breach was that the job offer did not
have Complainantâs EEO complaint number on it and was offered via OWCP.
However, the Agency persuasively argues that the job offer had to be
coordinated with OWCP as evidenced by the language of provision (5).
We find that the December 2010 job offer was in compliance with provision
(4) of the settlement agreement.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agencyâs determination finding no breach of the settlement agreement.
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 partyâs 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).
COMPLAINANTâS 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. âAgencyâ or âdepartmentâ 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 (âRight to File A Civil Actionâ).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 26, 2011
__________________
Date
| [
"Herrington v. Depât of Def., EEOC Request No. 05960032 (December 9, 1996)",
"Eggleston v. Depât of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990)",
"730 F.2d 377"
] | [
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0.017260614782571793,
0.06157165393233299,
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0.04323185980319977,
0.010486363433301449,
-0.039213716983795166,
0.04519423842430115,
-0.004... |
4,902 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120111224.txt | 0120111224.txt | TXT | text/plain | 9,637 | Joseph Anoruo, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. | November 29, 2010 | Appeal Number: 0120111224
Background:
During the period at issue, Complainant worked as a Clinical Pharmacist,
GS-12, at the Agencyâs VA South Nevada Health Care System in Las
Vegas, Nevada.
On July 30, 2010, Complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful. On October
11, 2010, Complainant filed the instant formal complaint, claiming that
the Agency subjected him to discrimination on the bases of race (black),
national origin (Nigeria), age (48), and in reprisal for prior protected
activity when:
(1). On May 25, 2004, his application for the Education Debt Reduction
Program (EDRP) was wrongfully determined to be late and denied due to
Complainant having relied on incorrect advice received from a Human
Resource Official.
(2) On September 19, 2007, the former Chief of Pharmacy Care Line and/or
Chief of Pharmacy, closed Complainantâs Infectious Disease Clinic and
Pain Clinic; and on September 21, 2010, he received a notification from
the Human Resources Manager, that the Chief of Pharmacy had stated
that the clinic was closed because, âit was not approved by the
VA,â which he perceived as meaning that there were questions about
Complainantâs competence.
(3) On June 26, 2010, the Medical Center Director refused to grant
Complainant a good faith meeting to discuss Complainantâs denial
of EDRP.
(4) On September 21, 2010, Complainant became aware that the Chief of
Pharmacy Service was Selecting Official who, on May 18, 2009, non-selected
Complainant for the position of Supervisory Pharmacist, GS-13, and that
he told the Human Resources Manager that Complainant was not selected
due to lack of supervisory and in-patient pharmacy experience.
The Agency dismissed claim 1 for failure to state a claim stating that
the ERDP is administered by the Healthcare Recruitment and Retention
Office (HRRO), New Orleans, Louisiana and therefore, determined that
the HRRO makes the decisions on EDRP applications. The Agency stated
that the local facility of the Human Resources Office functions only
as a liaison or coordinator and that it has no authority to override
the decision made by the HRRO. Accordingly, the Agency concluded that
Complainant lodged a collateral attack on another agencyâs proceeding,
and thus lacked standing.
The Agency dismissed claims 1, 2 and 4 on the grounds that Complainant
did not contact an EEO Counselor on these claims until July 30, 2010,
beyond the 45-day time limit set by the regulations. The Agency found
his Counselor contact was untimely because the application for the EDRP
was originally denied on May 25, 2004 (claim 1), the clinic was closed
on September 19, 2007, (claim 2), and Complainant became aware that he
was not selected for the Supervisory Pharmacist on May 18, 2009 (claim 4).
Finally, the Agency dismissed claim 3 for failure to state a claim.
Specifically, the Agency determined that the incident raised in this claim
did not allege a personal loss or harm regarding a term, condition, or
privilege of employment. Moreover, the Agency found that the incident
alleged in claim 3 was neither severe nor pervasive enough to prove
that the alleged harassment had the purpose or effect of unreasonable
interfering with Complainantâs work performance or creating an offensive
or hostile work environment.
Legal Analysis:
the Commission determines that this matter fails to
state a claim under the EEOC regulations because Complainant failed to
allege 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. Depât
of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Moreover,
we find 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. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997). Finally,
the alleged Agency action was not of a type reasonably likely to deter
Complainant or others from engaging in protected activity. The Agency's
final decision dismissing claim 3 is also AFFIRMED.
Final Decision:
Accordingly, the Agency concluded that Complainant lodged a collateral attack on another agencyâs proceeding, and thus lacked standing. The Agency dismissed claims 1, 2 and 4 on the grounds that Complainant did not contact an EEO Counselor on these claims until July 30, 2010, beyond the 45-day time limit set by the regulations. The Agency found his Counselor contact was untimely because the application for the EDRP was originally denied on May 25, 2004 (claim 1), the clinic was closed on September 19, 2007, (claim 2), and Complainant became aware that he was not selected for the Supervisory Pharmacist on May 18, 2009 (claim 4). Finally, the Agency dismissed claim 3 for failure to state a claim. Specifically, the Agency determined that the incident raised in this claim did not allege a personal loss or harm regarding a term, condition, or privilege of employment. Moreover, the Agency found that the incident alleged in claim 3 was neither severe nor pervasive enough to prove that the alleged harassment had the purpose or effect of unreasonable interfering with Complainantâs work performance or creating an offensive or hostile work environment. ANALYSIS AND FINDINGS Complainant's formal complaint was properly dismissed pursuant to 29 C.F.R. §§ 1614.107(a) (1) and (2) for failure to state a claim and on the grounds of untimely EEO Counselor contact. Claims 1, 2, and 4 The record indicates that complainant first contacted an EEO Counselor on July 30, 2010, which is beyond the 45-day limitation set by 29 C.F.R. § 1614.107 (a) (2), in regard to all of the matters raised in these three claims. Complainant has failed to present adequate justification for extending the limitation period beyond 45 days. The Agency's decision to dismiss claims 1, 2, and 4 for failure to initiate contact with an EEO Counselor in a timely fashion was proper and is AFFIRMED. | 
Joseph Anoruo,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120111224
Agency No. 200P-0593-2010104266
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision dated November 29, 2010, dismissing a formal 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
During the period at issue, Complainant worked as a Clinical Pharmacist,
GS-12, at the Agencyâs VA South Nevada Health Care System in Las
Vegas, Nevada.
On July 30, 2010, Complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful. On October
11, 2010, Complainant filed the instant formal complaint, claiming that
the Agency subjected him to discrimination on the bases of race (black),
national origin (Nigeria), age (48), and in reprisal for prior protected
activity when:
(1). On May 25, 2004, his application for the Education Debt Reduction
Program (EDRP) was wrongfully determined to be late and denied due to
Complainant having relied on incorrect advice received from a Human
Resource Official.
(2) On September 19, 2007, the former Chief of Pharmacy Care Line and/or
Chief of Pharmacy, closed Complainantâs Infectious Disease Clinic and
Pain Clinic; and on September 21, 2010, he received a notification from
the Human Resources Manager, that the Chief of Pharmacy had stated
that the clinic was closed because, âit was not approved by the
VA,â which he perceived as meaning that there were questions about
Complainantâs competence.
(3) On June 26, 2010, the Medical Center Director refused to grant
Complainant a good faith meeting to discuss Complainantâs denial
of EDRP.
(4) On September 21, 2010, Complainant became aware that the Chief of
Pharmacy Service was Selecting Official who, on May 18, 2009, non-selected
Complainant for the position of Supervisory Pharmacist, GS-13, and that
he told the Human Resources Manager that Complainant was not selected
due to lack of supervisory and in-patient pharmacy experience.
The Agency dismissed claim 1 for failure to state a claim stating that
the ERDP is administered by the Healthcare Recruitment and Retention
Office (HRRO), New Orleans, Louisiana and therefore, determined that
the HRRO makes the decisions on EDRP applications. The Agency stated
that the local facility of the Human Resources Office functions only
as a liaison or coordinator and that it has no authority to override
the decision made by the HRRO. Accordingly, the Agency concluded that
Complainant lodged a collateral attack on another agencyâs proceeding,
and thus lacked standing.
The Agency dismissed claims 1, 2 and 4 on the grounds that Complainant
did not contact an EEO Counselor on these claims until July 30, 2010,
beyond the 45-day time limit set by the regulations. The Agency found
his Counselor contact was untimely because the application for the EDRP
was originally denied on May 25, 2004 (claim 1), the clinic was closed
on September 19, 2007, (claim 2), and Complainant became aware that he
was not selected for the Supervisory Pharmacist on May 18, 2009 (claim 4).
Finally, the Agency dismissed claim 3 for failure to state a claim.
Specifically, the Agency determined that the incident raised in this claim
did not allege a personal loss or harm regarding a term, condition, or
privilege of employment. Moreover, the Agency found that the incident
alleged in claim 3 was neither severe nor pervasive enough to prove
that the alleged harassment had the purpose or effect of unreasonable
interfering with Complainantâs work performance or creating an offensive
or hostile work environment.
ANALYSIS AND FINDINGS
Complainant's formal complaint was properly dismissed pursuant to 29
C.F.R. §§ 1614.107(a) (1) and (2) for failure to state a claim and
on the grounds of untimely EEO Counselor contact.
Claims 1, 2, and 4
The record indicates that complainant first contacted an EEO Counselor on
July 30, 2010, which is beyond the 45-day limitation set by 29 C.F.R. §
1614.107 (a) (2), in regard to all of the matters raised in these three
claims. Complainant has failed to present adequate justification for
extending the limitation period beyond 45 days. The Agency's decision
to dismiss claims 1, 2, and 4 for failure to initiate contact with an
EEO Counselor in a timely fashion was proper and is AFFIRMED.
Because we affirm the dismissal of claim 1 for the reason stated herein,
we will not address alternative dismissal grounds.
Claim 3
Regarding claim 3, the Commission determines that this matter fails to
state a claim under the EEOC regulations because Complainant failed to
allege 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. Depât
of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Moreover,
we find 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. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997). Finally,
the alleged Agency action was not of a type reasonably likely to deter
Complainant or others from engaging in protected activity. The Agency's
final decision dismissing claim 3 is also 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 partyâs 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).
COMPLAINANTâS 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. âAgencyâ or âdepartmentâ 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 (âRight to File A Civil Actionâ).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 26, 2011
__________________
Date
| [
"Diaz v. Depât of the Air Force, EEOC Request No. 05931049 (April 21, 1994)",
"Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997)"
] | [
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0.024... |
4,903 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120111040.txt | 0120111040.txt | TXT | text/plain | 10,151 | Anita B. Dungan, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. | November 23, 2010 | Appeal Number: 0120111040
Background:
On April 21, 2010, Complainant and the Agency entered into a settlement agreement. The settlement agreement provided, in pertinent part:
(1) [The Agency will] remove and expunge Complainant's Letter of Warning received on January 13, 2009. Within sixty (60) days of the effective date of the agreement, [an Agency official] will provide a letter of confirmation to Complainant affirming that the Letter of Warning has been rescinded and expunged from her personal records.
(2) [The Director will] attend forty (40) hours of Supervisory/HR/Civil Rights/EEO training, with a minimum of twenty-four (24) hours to be exclusively Civil Rights/EEO training, to be completed within ninety (90) days of the execution of this agreement. Within ninety (90) days of the effective date of the agreement, [an Agency official] will provide a letter of confirmation to Complainant affirming [the Director] attended such training.
By letter to the Agency dated July 13, 2010, Complainant alleged that the Agency breached the settlement agreement1 and requested that the Agency reinstate her underlying EEO complaint. Specifically, Complainant alleged that the Agency failed to comply with provision 1 because the Agency had not sent her a letter by June 20, 2010, that confirmed that the Letter of Warning was removed. Complainant further stated that, although the Agency had until July 20, 2010, to send her a letter confirming that the Director had received 40 hours of training, she had not yet received such a letter. On October 6, 2010, Complainant reasserted the claims contained in her July 13, 2010, letter. When the Agency did not respond to Complainant's breach claims within 35 days after receiving her allegations of non-compliance, Complainant appealed the matter to the Commission, in accordance with 29 C.F.R. § 1614.505(b).
CONTENTIONS ON APPEAL
On appeal, Complainant submits copies of the letters in which he notified the Agency of her breach claim but does not present any argument. The Agency maintains that it substantially complied with the terms of the settlement agreement when it issued one letter on January 7, 2011, to Complainant confirming that the Director attended at least 40 hours of training, and a second letter to Complainant confirming that the Letter of Warning was expunged.
Legal Analysis:
the Commission, in accordance with 29 C.F.R. § 1614.505(b).
CONTENTIONS ON APPEAL
On appeal, Complainant submits copies of the letters in which he notified the Agency of her breach claim but does not present any argument. The Agency maintains that it substantially complied with the terms of the settlement agreement when it issued one letter on January 7, 2011, to Complainant confirming that the Director attended at least 40 hours of training, and a second letter to Complainant confirming that the Letter of Warning was expunged.
ANALYSIS
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep't of Def., EEOC Request No. 05960032 (Dec. 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention, that controls the contract's construction. Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (Aug. 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787 (Dec. 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case, the Agency agreed to issue a letter to Complainant confirming that it expunged a Letter of Warning within 60 days of the execution of the agreement. The Agency also agreed to issue a letter to Complainant confirming that the Director received 40 hours of training within 90 days of the execution of the settlement agreement.
The record reflects that in a second letter also dated January 7, 2011, the Agency informed Complainant that the Director had received at least 40 hours of Supervisory/Human Resources/Civil Rights/EEO training, including at least 24 hours of Civil Rights and EEO training. The letter specified the type of training the Director received and dates on which he attended the courses. The record further reflects that in a letter dated January 7, 2011, the Agency informed Complainant that an Employee/Labor Relations Assistant confirmed that her Letter of Warning was rescinded and expunged from her personal records in Spring 2010, and no copies of the Letter of Warning were entered into her electronic personnel file or any other electronic database.
The Agency complied with provision 1 over six months late and with provision 2 over five months late. We note that failure to satisfy a time-frame specified in a settlement agreement does not prevent a finding of substantial compliance, especially when all required actions were subsequently completed, and the complainant has not shown that he or she was harmed by the delay. Lazarte v. Dep't of the Interior, EEOC Appeal No. 01954274 (Apr. 25, 1996). In this matter, we find that the Agency substantially complied with the terms of the agreement. See Onyenekwe v. Dep't of Veterans Affairs, EEOC Appeal No. 0120101929 (substantial compliance where the Agency was approximately one year late in removing documents from Complainant's personnel folder as promised) (Aug. 6, 2010). Consequently, the Commission finds that the Agency did not breach the agreement. | Anita B. Dungan,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120111040
Agency No. FS-2009-00320
DECISION
Complainant filed a timely appeal with this Commission alleging that the Agency breached the terms of a November 23, 2010 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405.
BACKGROUND
On April 21, 2010, Complainant and the Agency entered into a settlement agreement. The settlement agreement provided, in pertinent part:
(1) [The Agency will] remove and expunge Complainant's Letter of Warning received on January 13, 2009. Within sixty (60) days of the effective date of the agreement, [an Agency official] will provide a letter of confirmation to Complainant affirming that the Letter of Warning has been rescinded and expunged from her personal records.
(2) [The Director will] attend forty (40) hours of Supervisory/HR/Civil Rights/EEO training, with a minimum of twenty-four (24) hours to be exclusively Civil Rights/EEO training, to be completed within ninety (90) days of the execution of this agreement. Within ninety (90) days of the effective date of the agreement, [an Agency official] will provide a letter of confirmation to Complainant affirming [the Director] attended such training.
By letter to the Agency dated July 13, 2010, Complainant alleged that the Agency breached the settlement agreement1 and requested that the Agency reinstate her underlying EEO complaint. Specifically, Complainant alleged that the Agency failed to comply with provision 1 because the Agency had not sent her a letter by June 20, 2010, that confirmed that the Letter of Warning was removed. Complainant further stated that, although the Agency had until July 20, 2010, to send her a letter confirming that the Director had received 40 hours of training, she had not yet received such a letter. On October 6, 2010, Complainant reasserted the claims contained in her July 13, 2010, letter. When the Agency did not respond to Complainant's breach claims within 35 days after receiving her allegations of non-compliance, Complainant appealed the matter to the Commission, in accordance with 29 C.F.R. § 1614.505(b).
CONTENTIONS ON APPEAL
On appeal, Complainant submits copies of the letters in which he notified the Agency of her breach claim but does not present any argument. The Agency maintains that it substantially complied with the terms of the settlement agreement when it issued one letter on January 7, 2011, to Complainant confirming that the Director attended at least 40 hours of training, and a second letter to Complainant confirming that the Letter of Warning was expunged.
ANALYSIS
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep't of Def., EEOC Request No. 05960032 (Dec. 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention, that controls the contract's construction. Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (Aug. 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787 (Dec. 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case, the Agency agreed to issue a letter to Complainant confirming that it expunged a Letter of Warning within 60 days of the execution of the agreement. The Agency also agreed to issue a letter to Complainant confirming that the Director received 40 hours of training within 90 days of the execution of the settlement agreement.
The record reflects that in a second letter also dated January 7, 2011, the Agency informed Complainant that the Director had received at least 40 hours of Supervisory/Human Resources/Civil Rights/EEO training, including at least 24 hours of Civil Rights and EEO training. The letter specified the type of training the Director received and dates on which he attended the courses. The record further reflects that in a letter dated January 7, 2011, the Agency informed Complainant that an Employee/Labor Relations Assistant confirmed that her Letter of Warning was rescinded and expunged from her personal records in Spring 2010, and no copies of the Letter of Warning were entered into her electronic personnel file or any other electronic database.
The Agency complied with provision 1 over six months late and with provision 2 over five months late. We note that failure to satisfy a time-frame specified in a settlement agreement does not prevent a finding of substantial compliance, especially when all required actions were subsequently completed, and the complainant has not shown that he or she was harmed by the delay. Lazarte v. Dep't of the Interior, EEOC Appeal No. 01954274 (Apr. 25, 1996). In this matter, we find that the Agency substantially complied with the terms of the agreement. See Onyenekwe v. Dep't of Veterans Affairs, EEOC Appeal No. 0120101929 (substantial compliance where the Agency was approximately one year late in removing documents from Complainant's personnel folder as promised) (Aug. 6, 2010). Consequently, the Commission finds that the Agency did not breach the agreement.
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), 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
May 25, 2012
Date
1 The settlement agreement also provided that the Agency would remove the Director from Complainant's chain of command, and would pay Complainant $5,000. There is no dispute that the Agency complied with those provisions of the settlement agreement.
------------------------------------------------------------
------------------------------------------------------------
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4,904 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120103194.txt | 0120103194.txt | TXT | text/plain | 11,295 | Wayne B. Upshaw, Complainant, v. Thomas Hill Moore, Chair, Consumer Product Safety Commission, Agency. | June 22, 2010 | Appeal Number: 0120103194
Background:
In December 2009, Complainant requested to file a complaint with the Agency alleging that the Agency provided derogatory information about him to the Bureau of Alcohol, Tobacco and Firearms (ATF) in connection with his application for a position at ATF. In an email, the Agency declined to process his request because it concerned a non-selection at ATF. Complainant appealed to the Commission. We docketed his appeal and considered the email as a dismissal for failure to state a claim.
On March 3, 2010, the Commission concluded that Complainant had stated a viable claim of retaliation because he was alleging that the derogatory information was provided in reprisal for his having engaged in protected activity while an employee of the Agency. The Commission remanded the claim for EEO counseling.1 Upshaw v. Consumer Product Safety Commission, EEOC Appeal No. 0120101281 (March 3, 2010).
The Agency requested reconsideration, arguing, inter alia, that the Commission's decision involved a clearly erroneous interpretation of material fact when it stated that Complainant had been an employee of the Agency. According to the Agency, in 2008, Complainant had been an applicant for employment who had received a tentative job offer that was subsequently withdrawn. He was thus never an Agency employee. In addition, in December 2009, he was not an applicant for employment with the Agency. The Agency thus argued that Complainant lacked standing to file a complaint under 29 C.F.R. § 1614.103. The Agency also argued that it had provided truthful information about a matter of public record to ATF, an action which could not form the basis of a retaliation claim. The Commission denied the Agency's request, concluding that the Agency's arguments mainly addressed the merits of the claim without the benefit of a proper investigation. Upshaw v. Consumer Product Safety Commission, EEOC Request No. 0520100290 (April 29, 2010).
Consequently, the Agency provided Complainant with EEO Counseling and notice of his right to file a formal complaint. On June 11, 2010, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and in reprisal for prior protected EEO activity when Agency employees provided derogatory information to ATF during a background investigation, prompting ATF to stop considering him for employment.
On June 22, 2010, the Agency issued a final decision dismissing the complaint, arguing that Complainant had no standing to file as he was neither an applicant for employment with the Agency, an employee of the Agency, or a former employee of the Agency. This appeal followed.
Legal Analysis:
Upon review, the Commission finds that Complainant's complaint was improperly dismissed for failure to state a claim.
BACKGROUND
In December 2009, Complainant requested to file a complaint with the Agency alleging that the Agency provided derogatory information about him to the Bureau of Alcohol, Tobacco and Firearms (ATF) in connection with his application for a position at ATF. In an email, the Agency declined to process his request because it concerned a non-selection at ATF. Complainant appealed to the Commission. We docketed his appeal and considered the email as a dismissal for failure to state a claim.
On March 3, 2010, the Commission concluded that Complainant had stated a viable claim of retaliation because he was alleging that the derogatory information was provided in reprisal for his having engaged in protected activity while an employee of the Agency. The Commission remanded the claim for EEO counseling.1 Upshaw v. Consumer Product Safety Commission, EEOC Appeal No. 0120101281 (March 3, 2010).
The Agency requested reconsideration, arguing, inter alia, that the Commission's decision involved a clearly erroneous interpretation of material fact when it stated that Complainant had been an employee of the Agency. According to the Agency, in 2008, Complainant had been an applicant for employment who had received a tentative job offer that was subsequently withdrawn. He was thus never an Agency employee. In addition, in December 2009, he was not an applicant for employment with the Agency. The Agency thus argued that Complainant lacked standing to file a complaint under 29 C.F.R. § 1614.103. The Agency also argued that it had provided truthful information about a matter of public record to ATF, an action which could not form the basis of a retaliation claim. The Commission denied the Agency's request, concluding that the Agency's arguments mainly addressed the merits of the claim without the benefit of a proper investigation. Upshaw v. Consumer Product Safety Commission, EEOC Request No. 0520100290 (April 29, 2010).
Consequently, the Agency provided Complainant with EEO Counseling and notice of his right to file a formal complaint. On June 11, 2010, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and in reprisal for prior protected EEO activity when Agency employees provided derogatory information to ATF during a background investigation, prompting ATF to stop considering him for employment.
On June 22, 2010, the Agency issued a final decision dismissing the complaint, arguing that Complainant had no standing to file as he was neither an applicant for employment with the Agency, an employee of the Agency, or a former employee of the Agency. This appeal followed.
ANALYSIS AND FINDINGS
Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter protected activity. It is clear from this record and those previously considered by the Commission that Complainant is alleging the Agency gave derogatory information to his prospective employer because he filed an EEO complaint against the Agency.2 While we express no opinion at this juncture as to the merits of this complaint, as noted in EEOC Request No. 0520100290, we again conclude that this states a viable claim of retaliation which demands a proper investigation. This investigation shall also include Complainant's allegation of racial discrimination.
Final Decision:
Accordingly, the Agency's final decision dismissing Complainant's complaint is vacated. | Wayne B. Upshaw,
Complainant,
v.
Thomas Hill Moore,
Chair,
Consumer Product Safety Commission,
Agency.
Appeal No. 0120103194
Agency No. CPSC-EEO-10004
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 22, 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. Upon review, the Commission finds that Complainant's complaint was improperly dismissed for failure to state a claim.
BACKGROUND
In December 2009, Complainant requested to file a complaint with the Agency alleging that the Agency provided derogatory information about him to the Bureau of Alcohol, Tobacco and Firearms (ATF) in connection with his application for a position at ATF. In an email, the Agency declined to process his request because it concerned a non-selection at ATF. Complainant appealed to the Commission. We docketed his appeal and considered the email as a dismissal for failure to state a claim.
On March 3, 2010, the Commission concluded that Complainant had stated a viable claim of retaliation because he was alleging that the derogatory information was provided in reprisal for his having engaged in protected activity while an employee of the Agency. The Commission remanded the claim for EEO counseling.1 Upshaw v. Consumer Product Safety Commission, EEOC Appeal No. 0120101281 (March 3, 2010).
The Agency requested reconsideration, arguing, inter alia, that the Commission's decision involved a clearly erroneous interpretation of material fact when it stated that Complainant had been an employee of the Agency. According to the Agency, in 2008, Complainant had been an applicant for employment who had received a tentative job offer that was subsequently withdrawn. He was thus never an Agency employee. In addition, in December 2009, he was not an applicant for employment with the Agency. The Agency thus argued that Complainant lacked standing to file a complaint under 29 C.F.R. § 1614.103. The Agency also argued that it had provided truthful information about a matter of public record to ATF, an action which could not form the basis of a retaliation claim. The Commission denied the Agency's request, concluding that the Agency's arguments mainly addressed the merits of the claim without the benefit of a proper investigation. Upshaw v. Consumer Product Safety Commission, EEOC Request No. 0520100290 (April 29, 2010).
Consequently, the Agency provided Complainant with EEO Counseling and notice of his right to file a formal complaint. On June 11, 2010, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and in reprisal for prior protected EEO activity when Agency employees provided derogatory information to ATF during a background investigation, prompting ATF to stop considering him for employment.
On June 22, 2010, the Agency issued a final decision dismissing the complaint, arguing that Complainant had no standing to file as he was neither an applicant for employment with the Agency, an employee of the Agency, or a former employee of the Agency. This appeal followed.
ANALYSIS AND FINDINGS
Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter protected activity. It is clear from this record and those previously considered by the Commission that Complainant is alleging the Agency gave derogatory information to his prospective employer because he filed an EEO complaint against the Agency.2 While we express no opinion at this juncture as to the merits of this complaint, as noted in EEOC Request No. 0520100290, we again conclude that this states a viable claim of retaliation which demands a proper investigation. This investigation shall also include Complainant's allegation of racial discrimination.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is vacated. The complaint is hereby remanded to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. 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 (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0610)
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 (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
June 7, 2012
__________________
Date
1 In our decision, we noted that even if Complainant prevailed in his claim against the Agency, his relief would not include retroactive placement into the position he lost at ATF, and we informed Complainant that to secure equitable relief concerning his actual non-selection for the ATF position, he would have to file a complaint with ATF.
2 That complaint is currently pending before the Commission, EEOC Appeal No. 0120102901.
------------------------------------------------------------
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4,905 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120102778.txt | 0120102778.txt | TXT | text/plain | 10,780 | Cliff D. Whigman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency. | May 10, 2010 | Appeal Number: 0120102778
Background:
During the relevant period, Complainant worked as a Maintenance MOS clerk at a Cincinnati, Ohio distribution center of the Agency. In a formal EEO complaint dated April 20, 2010, Complainant alleged that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity when (1) while "on the clock," his supervisor (S1) hand-delivered a personal letter1 threatening to sue Complainant to him and his attorney from S1's non-agency attorney and (2) unspecified individuals returned official mail to Complainant's Designated Representative by return to sender.
In its May 10 final decision, the Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Specifically, the Agency stated that the action alleged in (1) does not render Complainant aggrieved and the action alleged in (2) was too vague to be actionable. The instant appeal from Complainant followed. On appeal, Complainant stated that the alleged actions have had a "direct impact on [his] and his representative's willingness to openly request EEO time or . . . to prosecute their cases." He added that his representative stated that his current case load will be his last.
Legal Analysis:
Upon review, the Commission finds that Complainant's complaint was improperly dismissed, in part, pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.
BACKGROUND
During the relevant period, Complainant worked as a Maintenance MOS clerk at a Cincinnati, Ohio distribution center of the Agency. In a formal EEO complaint dated April 20, 2010, Complainant alleged that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity when (1) while "on the clock," his supervisor (S1) hand-delivered a personal letter1 threatening to sue Complainant to him and his attorney from S1's non-agency attorney and (2) unspecified individuals returned official mail to Complainant's Designated Representative by return to sender.
In its May 10 final decision, the Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Specifically, the Agency stated that the action alleged in (1) does not render Complainant aggrieved and the action alleged in (2) was too vague to be actionable. The instant appeal from Complainant followed. On appeal, Complainant stated that the alleged actions have had a "direct impact on [his] and his representative's willingness to openly request EEO time or . . . to prosecute their cases." He added that his representative stated that his current case load will be his last.
ANALYSIS AND FINDINGS
We disagree with the Agency dismissal in part. As to (1), the act of presenting Complainant and his representative a letter threatening civil action, in the workplace and related to obtaining documents for an EEO matter, can have a potentially chilling effect on the process that employees have to enforce equal employment opportunity. See generally Parker v. Department of the Navy, EEOC Appeal No. 01970412 (October 4, 2000). We find that Complainant was subjected to an action that is reasonably likely to deter employees from engaging in EEO activity. Conversely, we agree with the Agency that the action alleged in (2) fails to state a claim under EEOC regulations because 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 (April 21, 1994). | Cliff D. Whigman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120102778
Agency No. 1C452001510
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 10, 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. Upon review, the Commission finds that Complainant's complaint was improperly dismissed, in part, pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.
BACKGROUND
During the relevant period, Complainant worked as a Maintenance MOS clerk at a Cincinnati, Ohio distribution center of the Agency. In a formal EEO complaint dated April 20, 2010, Complainant alleged that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity when (1) while "on the clock," his supervisor (S1) hand-delivered a personal letter1 threatening to sue Complainant to him and his attorney from S1's non-agency attorney and (2) unspecified individuals returned official mail to Complainant's Designated Representative by return to sender.
In its May 10 final decision, the Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Specifically, the Agency stated that the action alleged in (1) does not render Complainant aggrieved and the action alleged in (2) was too vague to be actionable. The instant appeal from Complainant followed. On appeal, Complainant stated that the alleged actions have had a "direct impact on [his] and his representative's willingness to openly request EEO time or . . . to prosecute their cases." He added that his representative stated that his current case load will be his last.
ANALYSIS AND FINDINGS
We disagree with the Agency dismissal in part. As to (1), the act of presenting Complainant and his representative a letter threatening civil action, in the workplace and related to obtaining documents for an EEO matter, can have a potentially chilling effect on the process that employees have to enforce equal employment opportunity. See generally Parker v. Department of the Navy, EEOC Appeal No. 01970412 (October 4, 2000). We find that Complainant was subjected to an action that is reasonably likely to deter employees from engaging in EEO activity. Conversely, we agree with the Agency that the action alleged in (2) fails to state a claim under EEOC regulations because 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 (April 21, 1994). Accordingly, we REVERSE and REMAND the Agency decision in part consistent with this decision and the Order below, and AFFIRM it in part.
ORDER
The Agency is ordered to process the remanded claim - (1) - in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
__November 3, 2010_____
Date
1 The record contains a letter dated January 13, 2010 from S1's attorney, which states the following.
I represent [S1] with regard to a document entitled "Affidavit", which has been circulated and published at the Cincinnati Network Distribution Center. I am writing to you at this time to let you know of my representation and to indicate to you that the document that is being circulated is not an Affidavit, and it contains information that is inaccurate and actionable.
I am writing to you at this time to let you know that unless these activities cease, [S1] is considering taking legal action. If we are forced to take legal action, we will, of course, be requesting damages and any other remedies permitted under law, including the award of attorney fees and court costs.
------------------------------------------------------------
------------------------------------------------------------
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4,906 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120102744.txt | 0120102744.txt | TXT | text/plain | 10,461 | Nathan H. Love, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency. | April 3, 2007 | Appeal Number: 0120102744
Background:
At the time of events giving rise to this complaint, Complainant worked as a Tire Repairer at the Agency's work facility in Omaha. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On April 3, 2007, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
[Agency Official] agrees to repost the position of Tire Repairman to include duties of "all other duties as assigned" and to include hours from 6:00 a.m. - 2:30 p.m.
By letter to the Agency dated May 17, 2010, Complainant alleged that the Agency was going to breach the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency would be in non-compliance with the agreement when it changed his work hours on June 15, 2010, from 6:00 a.m. - 2:30 p.m. to 10:00 a.m. - 6:30 p.m.
On June 17, 2010, Complainant filed the instant appeal with the Commission wherein he states that his work hours were changed beginning June 17, 2010. Complainant states that he wishes to have his work hours restored to the 6:00 a.m. - 2:30 p.m. tour referenced in the settlement agreement. Complainant further requests overtime pay for hours that he works outside the tour hours specified in the settlement agreement.
Legal Analysis:
the Commission wherein he states that his work hours were changed beginning June 17, 2010. Complainant states that he wishes to have his work hours restored to the 6:00 a.m. - 2:30 p.m. tour referenced in the settlement agreement. Complainant further requests overtime pay for hours that he works outside the tour hours specified in the settlement agreement.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep't of Def., EEOC Request No. 05960032 (December 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention, that controls the contract's construction. Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787 (December 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
EEOC Regulation 29 C.F.R. § 1614.504(a) further provides that if the Complainant believes that the Agency has failed to comply with the terms of a settlement agreement or decision, the Complainant shall notify the EEO Director, in writing, of the alleged noncompliance within 30 days of when the Complainant knew or should have known of the alleged noncompliance.
In the instant case, we observe that in a letter dated May 17, 2010, Complainant claimed that the Agency would breach the settlement agreement at issue on June 15, 2010, when his work hours would be changed from 6:00 a.m. - 2:30 p.m. to 10:00 a.m. - 6:30 p.m. We note that although this letter was directed to three Agency officials, it is not clear as to whether it was also sent to an Agency EEO official. The Agency has not issued a decision on the breach allegation. In light of this situation where it is not clear that the appropriate Agency EEO official was informed of the alleged breach, we find that this matter should be REMANDED to the Agency to allow for the issuance of a determination on the merits of Complainant's breach claim.
ORDER
Pursuant to the procedures detailed in 29 C.F.R. § 1614.504(a), the Agency shall investigate Complainant's breach claim to determine whether it has complied with this settlement agreement. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall issue a determination regarding whether or not it has complied with the settlement agreement with appeal rights to this Commission. A copy of the Agency's determination must be sent to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. | Nathan H. Love,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120102744
Agency No. 4E-680-0031-07
DECISION
Complainant filed an appeal with this Commission as to whether the Agency is in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Tire Repairer at the Agency's work facility in Omaha. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On April 3, 2007, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
[Agency Official] agrees to repost the position of Tire Repairman to include duties of "all other duties as assigned" and to include hours from 6:00 a.m. - 2:30 p.m.
By letter to the Agency dated May 17, 2010, Complainant alleged that the Agency was going to breach the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency would be in non-compliance with the agreement when it changed his work hours on June 15, 2010, from 6:00 a.m. - 2:30 p.m. to 10:00 a.m. - 6:30 p.m.
On June 17, 2010, Complainant filed the instant appeal with the Commission wherein he states that his work hours were changed beginning June 17, 2010. Complainant states that he wishes to have his work hours restored to the 6:00 a.m. - 2:30 p.m. tour referenced in the settlement agreement. Complainant further requests overtime pay for hours that he works outside the tour hours specified in the settlement agreement.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep't of Def., EEOC Request No. 05960032 (December 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention, that controls the contract's construction. Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787 (December 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
EEOC Regulation 29 C.F.R. § 1614.504(a) further provides that if the Complainant believes that the Agency has failed to comply with the terms of a settlement agreement or decision, the Complainant shall notify the EEO Director, in writing, of the alleged noncompliance within 30 days of when the Complainant knew or should have known of the alleged noncompliance.
In the instant case, we observe that in a letter dated May 17, 2010, Complainant claimed that the Agency would breach the settlement agreement at issue on June 15, 2010, when his work hours would be changed from 6:00 a.m. - 2:30 p.m. to 10:00 a.m. - 6:30 p.m. We note that although this letter was directed to three Agency officials, it is not clear as to whether it was also sent to an Agency EEO official. The Agency has not issued a decision on the breach allegation. In light of this situation where it is not clear that the appropriate Agency EEO official was informed of the alleged breach, we find that this matter should be REMANDED to the Agency to allow for the issuance of a determination on the merits of Complainant's breach claim.
ORDER
Pursuant to the procedures detailed in 29 C.F.R. § 1614.504(a), the Agency shall investigate Complainant's breach claim to determine whether it has complied with this settlement agreement. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall issue a determination regarding whether or not it has complied with the settlement agreement with appeal rights to this Commission. A copy of the Agency's determination must be sent to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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), 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 (R0610)
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 (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:
May 24, 2012
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
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4,907 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120102670.txt | 0120102670.txt | TXT | text/plain | 10,959 | Karin Weng, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency. | June 8, 2010 | Appeal Number: 0120102670
Background:
During the relevant period, Complainant worked as an Employee Benefits Law Specialist at a District of Columbia office of the Agency. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian), national origin (Taiwanese), sex (female), disability (Anxiety/Depression), and reprisal for prior protected EEO activity when her immediate supervisor (S1) issued her a rating of "need to improve" in every element, for a total rating of "minimally satisfactory," for her 2009 mid-year review.1
The Agency accepted Complainant's claim for investigation. During the investigation, S1 made the statement that follows.
The purpose of the mid-year review is to serve as a progress review where employees are orally informed of their current performance before a formal review is conducted at the end of the performance year. . . . Accordingly, except for my e-mail to the file [of April 24, 2009,] there is no document that reflects the feedback provided during the review. Thus, [Complainant] only is complaining about the informal mid-year review and not the rating of record at the end of the performance year.
Further, based upon the feedback given by a supervisor or manager, an employee has an opportunity to improve their work performance for the remainder of the performance year. Because there is no formal rating associated with the mid-year review, there is no potential bonus associated with the mid-year performance review discussion. Accordingly, there are no adverse consequences or detriment to the employee based on the mid-year review.
A supervisor who is not in Complainant's supervisory chain (S2) stated that S1 asked her, with Complainant's consent, to attend Complainant's mid-year performance review on April 24, 2009. S1 stated that she simply observed the April 24 discussion and that S1 did not give Complainant a formal written performance rating but informed her that she had five months to improve her performance to satisfactory. S2 added that S1 informed Complainant of her accomplishments and deficiencies and gave her advice on how to improve her performance. Further, S2 stated that departmental standards require at least one progress review a minimum of 120 days prior to the end of the rating period.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant chose the latter. The Agency issued a final decision finding no discrimination. Specifically, the Agency found that Complainant failed to show that the legitimate, nondiscriminatory reasons articulated by the Agency for its actions are pretext. The instant appeal from Complainant followed. On appeal, Complainant stated that she received higher performance ratings prior to her EEO activity and her supervision by S1, the standards applied were subjective rather than objective, and two former female coworkers were subject to discrimination by S1 also.
Legal Analysis:
The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
During the relevant period, Complainant worked as an Employee Benefits Law Specialist at a District of Columbia office of the Agency. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian), national origin (Taiwanese), sex (female), disability (Anxiety/Depression), and reprisal for prior protected EEO activity when her immediate supervisor (S1) issued her a rating of "need to improve" in every element, for a total rating of "minimally satisfactory," for her 2009 mid-year review.1
The Agency accepted Complainant's claim for investigation. During the investigation, S1 made the statement that follows.
The purpose of the mid-year review is to serve as a progress review where employees are orally informed of their current performance before a formal review is conducted at the end of the performance year. . . . | Karin Weng,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120102670
Agency No. CRC0911086
DECISION
On June 8, 2010, Complainant filed an appeal from the Agency's May 10, 2010 final decision concerning her equal employment opportunity (EEO) complaint alleging 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
During the relevant period, Complainant worked as an Employee Benefits Law Specialist at a District of Columbia office of the Agency. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian), national origin (Taiwanese), sex (female), disability (Anxiety/Depression), and reprisal for prior protected EEO activity when her immediate supervisor (S1) issued her a rating of "need to improve" in every element, for a total rating of "minimally satisfactory," for her 2009 mid-year review.1
The Agency accepted Complainant's claim for investigation. During the investigation, S1 made the statement that follows.
The purpose of the mid-year review is to serve as a progress review where employees are orally informed of their current performance before a formal review is conducted at the end of the performance year. . . . Accordingly, except for my e-mail to the file [of April 24, 2009,] there is no document that reflects the feedback provided during the review. Thus, [Complainant] only is complaining about the informal mid-year review and not the rating of record at the end of the performance year.
Further, based upon the feedback given by a supervisor or manager, an employee has an opportunity to improve their work performance for the remainder of the performance year. Because there is no formal rating associated with the mid-year review, there is no potential bonus associated with the mid-year performance review discussion. Accordingly, there are no adverse consequences or detriment to the employee based on the mid-year review.
A supervisor who is not in Complainant's supervisory chain (S2) stated that S1 asked her, with Complainant's consent, to attend Complainant's mid-year performance review on April 24, 2009. S1 stated that she simply observed the April 24 discussion and that S1 did not give Complainant a formal written performance rating but informed her that she had five months to improve her performance to satisfactory. S2 added that S1 informed Complainant of her accomplishments and deficiencies and gave her advice on how to improve her performance. Further, S2 stated that departmental standards require at least one progress review a minimum of 120 days prior to the end of the rating period.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant chose the latter. The Agency issued a final decision finding no discrimination. Specifically, the Agency found that Complainant failed to show that the legitimate, nondiscriminatory reasons articulated by the Agency for its actions are pretext. The instant appeal from Complainant followed. On appeal, Complainant stated that she received higher performance ratings prior to her EEO activity and her supervision by S1, the standards applied were subjective rather than objective, and two former female coworkers were subject to discrimination by S1 also.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Here, we agree with the Agency's finding of no discrimination. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). For instance, to establish a prima facie case of reprisal, Complainant generally must show that: (1) she engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
We find that Complainant satisfied the above elements to establish a prima facie case of reprisal discrimination. However, we find further that the Agency articulated legitimate, nondiscriminatory reasons for its action (summarily, to provide verbal feedback to Complainant regarding her performance to give her an opportunity to improve before her written annual performance evaluation), and Complainant failed to show that those reasons are pretext for discrimination. Complainant failed to establish that the Agency's action was based on discriminatory motives. Based on a thorough review of the record, we AFFIRM the final agency decision finding no discrimination.
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
__November 19, 2010___
Date
1 We note that Complainant stated that the mid-year review was verbal. Subsequently, in November 2009, S1 issued Complainant a Performance Appraisal and Rating of "Meet[s]" in all four elements and an overall rating of "Effective."
Reprisal is the only basis before us.
------------------------------------------------------------
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4,908 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120102638.txt | 0120102638.txt | TXT | text/plain | 10,427 | Brenda S. Sinclair, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency. | May 6, 2010 | Appeal Number: 0120102638
Background:
At the time of the events at issue, Complainant was employed by the Agency as a Modified Rural Carrier in Woodstock, Georgia. Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity when, in September 2009, agency management failed to reasonably accommodate her disability by not assigning her meaningful work within her medical restrictions. Instead she was assigned to the "stand-by" room. Complainant asserted that when she was assigned to the stand-by room she was given no meaningful work, told to read postal manuals for 8 hours a day, not allowed to use the telephone, not allowed to talk to anyone, not allowed to lay her head down on her desk, not allowed to listen to music, and she had to sign out any time she left the room, even to use the restroom. Complainant alleged that she was also given the letter of warning on October 7, 2009, for speaking to the only other person in the room.
The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a), for failure to state a claim and for untimely EEO counselor contact. The instant appeal followed.
Legal Analysis:
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).
We find Complainant's contention that she was reassigned from the a position with useful work to be warehoused in the stand-by room with no work as stating a present harm or loss with respect to a term or condition of employment. See Olatunj v. United States Postal Service, EEOC Appeal No. 0120100989 (May 27, 2010); and Allison v. United States Postal Service, EEOC Appeal No. 0120093709 (February 18, 2010).
Final Decision:
Accordingly, the complaint states a claim, and the Agency erred is dismissing it on this basis. With regard to the Agency's dismissal for untimely EEO counseling contact, the Commission finds that the duty to provide reasonable accommodation is on going in nature and that Complainant has alleged a continuing failure to accommodate. Thus, the Commission finds that Complainant's EEO counselor contact is timely. Further, the Commission finds that the assignment to the stand-by room was more punitive in nature than a means to accommodate Complainant's disability. Because the letter of warning flows from this punitive "accommodation" and under the circumstances of this case, the Commission finds that the letter of warning is timely raised as well. Accordingly, the Agency's final decision dismissing Complainant's complaint is VACATED. | Brenda S. Sinclair,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120102638
Agency No. 4H300010010
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 6, 2010, dismissing her 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.
BACKGROUND
At the time of the events at issue, Complainant was employed by the Agency as a Modified Rural Carrier in Woodstock, Georgia. Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity when, in September 2009, agency management failed to reasonably accommodate her disability by not assigning her meaningful work within her medical restrictions. Instead she was assigned to the "stand-by" room. Complainant asserted that when she was assigned to the stand-by room she was given no meaningful work, told to read postal manuals for 8 hours a day, not allowed to use the telephone, not allowed to talk to anyone, not allowed to lay her head down on her desk, not allowed to listen to music, and she had to sign out any time she left the room, even to use the restroom. Complainant alleged that she was also given the letter of warning on October 7, 2009, for speaking to the only other person in the room.
The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a), for failure to state a claim and for untimely EEO counselor contact. The instant appeal followed.
ANALYSIS AND FINDINGS.
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).
We find Complainant's contention that she was reassigned from the a position with useful work to be warehoused in the stand-by room with no work as stating a present harm or loss with respect to a term or condition of employment. See Olatunj v. United States Postal Service, EEOC Appeal No. 0120100989 (May 27, 2010); and Allison v. United States Postal Service, EEOC Appeal No. 0120093709 (February 18, 2010). Accordingly, the complaint states a claim, and the Agency erred is dismissing it on this basis.
With regard to the Agency's dismissal for untimely EEO counseling contact, the Commission finds that the duty to provide reasonable accommodation is on going in nature and that Complainant has alleged a continuing failure to accommodate. Thus, the Commission finds that Complainant's EEO counselor contact is timely. Further, the Commission finds that the assignment to the stand-by room was more punitive in nature than a means to accommodate Complainant's disability. Because the letter of warning flows from this punitive "accommodation" and under the circumstances of this case, the Commission finds that the letter of warning is timely raised as well.
Accordingly, the Agency's final decision dismissing Complainant's complaint is VACATED. The complaint is hereby remanded to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 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 (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0610)
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 (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
September 21, 2010
__________________
Date
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4,909 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120102390.txt | 0120102390.txt | TXT | text/plain | 10,877 | Frank A. Crowther, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. | April 14, 2010 | Appeal Number: 0120102390
Background:
At the time of events giving rise to this complaint, Complainant worked at the Agency's Edith Nourse Rogers Memorial Veterans Hospital in Bedford, Massachusetts.
The record indicates that on July 21, 2009, Complainant contacted an EEO counselor, alleging that his first-level supervisor (S-1) had subjected him to discrimination on the bases of age, reprisal (wife's prior EEO activity), and disability. Complainant subsequently entered into a settlement agreement with the Agency in November 2009. Pursuant to this agreement, Complainant agreed to withdraw his complaint of discrimination. The Agency agreed, in pertinent part, to:
1. Detail [Complainant] to Engineering Service as a Program Support Assistant, not to exceed 90 days from the effective date of the signed Settlement Agreement. During the period of detail, the Complainant's title, grade and series of record will remain the same.
2. At the end of the 90 day detail, Complainant will be required to return to Fiscal Service and will do so at his title, grade level and series of record. At any time during and after the 90 day detail, Complainant can apply for a permanent assignment to a position compatible with his abilities at his present or higher grade level.
By letter to the Agency dated January 26, 2010, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to comply with the provisions of paragraph (2), when it downgraded his position to a GS-grade level 6, step 10 position. Complainant also averred that the Agency subjected him to discrimination on the bases of his disability, age, and in reprisal for his wife's prior EEO activity when it downgraded his position.
In its April 14, 2010 FAD, the Agency concluded that management had complied with the terms of the agreement. Accordingly, the Agency concluded that Complainant failed to show that management breached the terms of the agreement.
CONTENTIONS ON APPEAL
On appeal, Complainant contended that S-1 subjected him to discrimination in reprisal for his wife's prior EEO activity, his mental disability, and age. Complainant also contended that he was denied a medical transfer as necessitated by his mental disability.
On appeal, the Agency averred that management complied with the terms of the settlement agreement, and insofar as Complainant was not returned to his Fiscal Service, GS-grade level 7 position, it was due to his voluntary acceptance of a lower graded position. It contended, therefore, that Complainant failed to establish that the management was in breach of the agreement. The Agency requested that the Commission affirm its final decision.
Legal Analysis:
The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's FD.
ISSUE PRESENTED
Whether the Agency properly found that management complied with the terms of the settlement agreement.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked at the Agency's Edith Nourse Rogers Memorial Veterans Hospital in Bedford, Massachusetts.
The record indicates that on July 21, 2009, Complainant contacted an EEO counselor, alleging that his first-level supervisor (S-1) had subjected him to discrimination on the bases of age, reprisal (wife's prior EEO activity), and disability. Complainant subsequently entered into a settlement agreement with the Agency in November 2009. Pursuant to this agreement, Complainant agreed to withdraw his complaint of discrimination. The Agency agreed, in pertinent part, to:
1. Detail [Complainant] to Engineering Service as a Program Support Assistant, not to exceed 90 days from the effective date of the signed Settlement Agreement. During the period of detail, the Complainant's title, grade and series of record will remain the same.
2. At the end of the 90 day detail, Complainant will be required to return to Fiscal Service and will do so at his title, grade level and series of record. At any time during and after the 90 day detail, Complainant can apply for a permanent assignment to a position compatible with his abilities at his present or higher grade level.
By letter to the Agency dated January 26, 2010, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to comply with the provisions of paragraph (2), when it downgraded his position to a GS-grade level 6, step 10 position. Complainant also averred that the Agency subjected him to discrimination on the bases of his disability, age, and in reprisal for his wife's prior EEO activity when it downgraded his position.
In its April 14, 2010 FAD, the Agency concluded that management had complied with the terms of the agreement. | Frank A. Crowther,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102390
Agency No. 200H05182009103970
DECISION
Complainant filed a timely appeal with this Commission from a final determination (FD) by the Agency dated April 14, 2010, finding that it was in compliance with the terms of a November 2009 settlement agreement into which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's FD.
ISSUE PRESENTED
Whether the Agency properly found that management complied with the terms of the settlement agreement.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked at the Agency's Edith Nourse Rogers Memorial Veterans Hospital in Bedford, Massachusetts.
The record indicates that on July 21, 2009, Complainant contacted an EEO counselor, alleging that his first-level supervisor (S-1) had subjected him to discrimination on the bases of age, reprisal (wife's prior EEO activity), and disability. Complainant subsequently entered into a settlement agreement with the Agency in November 2009. Pursuant to this agreement, Complainant agreed to withdraw his complaint of discrimination. The Agency agreed, in pertinent part, to:
1. Detail [Complainant] to Engineering Service as a Program Support Assistant, not to exceed 90 days from the effective date of the signed Settlement Agreement. During the period of detail, the Complainant's title, grade and series of record will remain the same.
2. At the end of the 90 day detail, Complainant will be required to return to Fiscal Service and will do so at his title, grade level and series of record. At any time during and after the 90 day detail, Complainant can apply for a permanent assignment to a position compatible with his abilities at his present or higher grade level.
By letter to the Agency dated January 26, 2010, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to comply with the provisions of paragraph (2), when it downgraded his position to a GS-grade level 6, step 10 position. Complainant also averred that the Agency subjected him to discrimination on the bases of his disability, age, and in reprisal for his wife's prior EEO activity when it downgraded his position.
In its April 14, 2010 FAD, the Agency concluded that management had complied with the terms of the agreement. Accordingly, the Agency concluded that Complainant failed to show that management breached the terms of the agreement.
CONTENTIONS ON APPEAL
On appeal, Complainant contended that S-1 subjected him to discrimination in reprisal for his wife's prior EEO activity, his mental disability, and age. Complainant also contended that he was denied a medical transfer as necessitated by his mental disability.
On appeal, the Agency averred that management complied with the terms of the settlement agreement, and insofar as Complainant was not returned to his Fiscal Service, GS-grade level 7 position, it was due to his voluntary acceptance of a lower graded position. It contended, therefore, that Complainant failed to establish that the management was in breach of the agreement. The Agency requested that the Commission affirm its final decision.
ANALYSIS AND FINDINGS
Initially, we find that Complainant's discrimination claims, i.e., reprisal, disability, and age, are not properly before the Commission. The instant appeal concerns an alleged breach of the settlement agreement entered into between Complainant and the Agency. Therefore, to the extent that Complainant is alleging that he was subjected to subsequent acts of reprisal, age, and disability discrimination, he should contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105 so that his claims of discrimination may be processed as a separate complaint of discrimination pursuant to §1614.106. See 29 C.F.R. § 1614.504(c).
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep't of Def., EEOC Request No. 05960032 (December 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention that controls the contract's construction. Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787 (December 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
We find the language contained in the agreement to be plain and unambiguous and the intent of the parties to be evident. In this regard, the agreement indicates that management intended to detail Complainant from a GS-grade level 7 Lead Fiscal Accounts Clerk in Fiscal Service to a Program Assistant in Engineering Service. The record reveals that management notified Complainant that the terms of the detail had been implemented. However, on November 16, 2009, Complainant applied for a position as a Program Support Assistant, GS-grade level 6, in Engineering Service. Complainant was subsequently referred for consideration on a "Change to Lower Grade" Merit Promotion Certificate. On January 14, 2010, Complainant accepted this position and acknowledged, in writing, that he was aware that it was a GS-grade level 6 position. In this regard, management averred that Complainant was not returned to his Fiscal Service position because he applied for an accepted the GS-grade level 6 position. To the extent that management did not reinstate Complainant in his former GS-7 grade level position, we find that this was due to Complainant's voluntary acceptance of a lower graded position as described above. Accordingly, we find that the Agency was not in breach of the agreement.
CONCLUSION
In review of the record in its entirety, including consideration of all statements submitted on appeal, we find that the Agency complied with the terms of the settlement agreement. Accordingly, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's FD.
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
____9/23/10______________
Date
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4,910 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120083084.txt | 0120083084.txt | TXT | text/plain | 10,450 | Prashant Katyal, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | May 30, 2008 | Appeal Number: 0120083084
Legal Analysis:
The Commission finds that the complaint stated a claim under the EEOC
regulations because 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. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). The Commission notes that
the agency cannot use the September 2007 settlement agreement as a means
to bar complainant from raising prospective issues.
Final Decision:
Accordingly, the agency's final decision dismissing complainant's complaint is reversed. | Prashant Katyal,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083084
Agency No. 1F957003608
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 30, 2008, 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.
At the time of the events at issue, complainant was employed by the agency
as a Clerk at the Sacramento, California Processing and Distribution
Center. Complainant had filed a previous EEO complaint against
the agency, identified as Agency Case No. 1F-957-0047-05, which was
settled between the parties on September 10, 2007, by written agreement.
Therein, complainant agreed, among other things, to certain procedures
for reporting absences, including providing certain medical documentation
in specified circumstances. Complainant received $25,000 as part of
the settlement agreement. The agreement also informed complainant that
should a dispute arise regarding the implementation of the agreement,
he would contact the Manager of the EEO Compliance and Appeals.
On May 21, 2008, complainant filed another EEO complaint, the one at issue
in the instant appeal. In its final decision, the agency characterized
this complaint as follows: complainant alleged that he was subjected
to discrimination on the bases of race (Indian), sex (male), religion
(not specified), color (not specified), disability (shoulder/back), and
reprisal for prior protected EEO activity when, on or about April 10,
2008, he was issued a notice to provide documentation related to the
settlement agreement in Agency Case. No. 1F-957-0047-05. The agency
dismissed this complaint pursuant to 29 C.F.R. § 1614.107(a)(8) as a
claim alleging dissatisfaction with the processing of a prior complaint.
The agency reasoned that complainant was now dissatisfied with being
required to comply with the terms of September 2007 agreement that
settled his prior complaint. On appeal, the agency further argued that
to the extent that complainant was asserting some sort of breach of the
agreement by the agency, the appropriate avenue to raise this concern
is through the mechanism specifically provided for in the agreement,
as well as the procedures outlined in 29 C.F.R. § 1614.504.
After careful review of the record, we determine that the agency
has improperly characterized the nature of complainant's current
EEO complaint. An examination of the complaint in conjunction with
the related pre-complaint materials reveals that rather than a claim of
dissatisfaction with the terms of the September 2007 settlement agreement,
complainant is now claiming discrimination and retaliation when his
medical insurance was wrongfully terminated by the agency and not
reinstated, he was ordered to provide additional medical documentation
which he could not get because he had no medical insurance, he was placed
in AWOL status beginning on March 22, 2008, and he was threatened with
additional disciplinary action. Further, complainant seems to allege
that even after providing the requested medical information to the agency,
it refused to bring him back to work.
The Commission finds that the complaint stated a claim under the EEOC
regulations because 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. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). The Commission notes that
the agency cannot use the September 2007 settlement agreement as a means
to bar complainant from raising prospective issues. Accordingly, the
agency's final decision dismissing complainant's complaint is reversed.
ORDER (E0408)
The agency is ordered to process the remanded claims, as redefined
by this decision, in accordance with 29 C.F.R. § 1614.108 et seq.
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 (K0408)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (R0408)
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 (Z0408)
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
September 12, 2008
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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4,911 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120082971.txt | 0120082971.txt | TXT | text/plain | 10,175 | Charles Mosely, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | May
18, 2008 | Appeal Number: 0120082971
Background:
During the relevant time, complainant worked as a Mail Processing
Clerk at the agency's South Houston Processing and Distribution Center
in Houston, Texas. Believing that he was subjected to discrimination
based on his prior EEO activity, complainant contacted the EEO office.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, complainant filed a formal complaint. The agency framed
the claim as follows1:
On October 17, 2007, complainant was issued a Letter of Warning (LOW).
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that complainant failed
to prove that he was subjected to discrimination as alleged.
According to the agency, complainant did not present a prima facie case
of reprisal. He did not establish any connection between his prior
EEO activity and the agency's decision to issue him a LOW, stated
the agency.
Even assuming that a prima facie case had been shown, the agency found
that complainant's first line supervisor (Automation Supervisor) had
a legitimate, non-discriminatory reason for doing so. Complainant was
issued the LOW due to his failure to be regular in attendance. The letter
specifically cited nine incidents of unscheduled absences between July
3 and September 22, 2007. Further, agency records revealed that for
the year of February 2007 through February 2008, complainant had 73
incidents of unscheduled absences.
In response to complainant's assertion that three other comparator
employees were not disciplined, the agency disagreed. According to
complainant's supervisor, one of the comparators was disciplined for
attendance problems in October 2007, and the two others were given
Official Discussions in June and September 2007.
Consequently, the agency found that complainant did not show that the
agency's proffered reason was pretext for discrimination. The complainant
failed to prove that the issuance of the LOW was due to his prior EEO
activity, concluded the agency.
Legal Analysis:
the Commission AFFIRMS the
agency's final decision.
BACKGROUND
During the relevant time, complainant worked as a Mail Processing
Clerk at the agency's South Houston Processing and Distribution Center
in Houston, Texas. Believing that he was subjected to discrimination
based on his prior EEO activity, complainant contacted the EEO office.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, complainant filed a formal complaint. The agency framed
the claim as follows1:
On October 17, 2007, complainant was issued a Letter of Warning (LOW).
At the | Charles Mosely,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082971
Agency No. 1G-772-0006-08
DECISION
Complainant filed an appeal from the agency's final decision, dated May
18, 2008, pertaining to his equal employment opportunity (EEO) complaint
alleging 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.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. §
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final decision.
BACKGROUND
During the relevant time, complainant worked as a Mail Processing
Clerk at the agency's South Houston Processing and Distribution Center
in Houston, Texas. Believing that he was subjected to discrimination
based on his prior EEO activity, complainant contacted the EEO office.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, complainant filed a formal complaint. The agency framed
the claim as follows1:
On October 17, 2007, complainant was issued a Letter of Warning (LOW).
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that complainant failed
to prove that he was subjected to discrimination as alleged.
According to the agency, complainant did not present a prima facie case
of reprisal. He did not establish any connection between his prior
EEO activity and the agency's decision to issue him a LOW, stated
the agency.
Even assuming that a prima facie case had been shown, the agency found
that complainant's first line supervisor (Automation Supervisor) had
a legitimate, non-discriminatory reason for doing so. Complainant was
issued the LOW due to his failure to be regular in attendance. The letter
specifically cited nine incidents of unscheduled absences between July
3 and September 22, 2007. Further, agency records revealed that for
the year of February 2007 through February 2008, complainant had 73
incidents of unscheduled absences.
In response to complainant's assertion that three other comparator
employees were not disciplined, the agency disagreed. According to
complainant's supervisor, one of the comparators was disciplined for
attendance problems in October 2007, and the two others were given
Official Discussions in June and September 2007.
Consequently, the agency found that complainant did not show that the
agency's proffered reason was pretext for discrimination. The complainant
failed to prove that the issuance of the LOW was due to his prior EEO
activity, concluded the agency.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
The instant record shows that the LOW itself explains that complainant
was issued the discipline due to his failure to be in regular attendance,
citing nine incidents of unscheduled absences during an approximately two
month period. Moreover, a copy of the Employee Key Indicators Report,
for February 2007 through February 2008 shows a high number of unscheduled
absences by complainant.
Complainant has failed to show that the agency's reasons were pretext
for discrimination. There is no evidence indicating that complainant
should not have been disciplined for his attendance problems. The
record does not show that the agency's actions were motivated by any
discriminatory animus.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions
on appeal, including those not specifically addressed herein, we AFFIRM
the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
December 17, 2008
Date
1 Although the formal complaint does not reflect a second claim, the
agency states that complainant also alleged: on October 20, 2007 the
FMLA coordinator intentionally and willfully violated his FMLA rights.
The record shows that this claim was dismissed for failure to state a
claim on January 8, 2008. On appeal, complainant does not challenge
the agency's decision to dismiss the claim, nor specifically reference
the second claim. Consequently, the Commission shall not address
it herein.
??
??
??
??
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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4,912 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120082758.txt | 0120082758.txt | TXT | text/plain | 10,061 | Miloslav Muller, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency. | April 16, 2008 | Appeal Number: 0120082758
Case Facts:
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts complainant's
appeal from the agency's April 16, 2008, final order concerning his equal
employment opportunity (EEO) complaint alleging 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.
At the time of his complaint, dated August 6, 2005, complainant worked as
a Veterinary Medical Officer, in the Animal and Plant Health Inspection
Services (APHIS), in the Albuquerque, New Mexico area. Complainant
alleged that the agency discriminated against him in reprisal for prior
protected EEO activity when, acting as a representative for an employee
in the Food Safety and Inspection Service (FSIS) in an EEO matter, (a)
he was orally admonished by a FSIS official for using the agency's email
system for non-government business; and (b) a FSIS manager wrote a letter
to APHIS officials rebuking complainant's use of agency equipment and
facilities for non-government business. Following an investigation,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). On April 1, 2008, the AJ issued a decision without a hearing,
granting the agency's Motion for summary judgment and finding that the
agency did not discriminate against complainant.
As noted by the AJ, in
Legal Analysis:
the Commission accepts complainant's
appeal from the agency's April 16, 2008, final order concerning his equal
employment opportunity (EEO) complaint alleging 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.
At the time of his complaint, dated August 6, 2005, complainant worked as
a Veterinary Medical Officer, in the Animal and Plant Health Inspection
Services (APHIS), in the Albuquerque, New Mexico area. Complainant
alleged that the agency discriminated against him in reprisal for prior
protected EEO activity when, acting as a representative for an employee
in the Food Safety and Inspection Service (FSIS) in an EEO matter, (a)
he was orally admonished by a FSIS official for using the agency's email
system for non-government business; and (b) a FSIS manager wrote a letter
to APHIS officials rebuking complainant's use of agency equipment and
facilities for non-government business. Following an investigation,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). On April 1, 2008, the AJ issued a decision without a hearing,
granting the agency's Motion for summary judgment and finding that the
agency did not discriminate against complainant.
As noted by the AJ, in analysis of claims claiming disparate treatment
taken in reprisal, we follow the three-part scheme of McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973), that is, complainant can
establish a prima facie case of reprisal discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Admin., EEOC Request
No. 05960403 (December 6, 1996). Specifically, in a reprisal claim,
and in accordance with the burdens set forth in McDonnell Douglas,
supra, to establish a prima facie case of reprisal, he must show that:
(1) he engaged in a prior protected activity; (2) the official acting
on behalf of the agency was aware of the protected activity; (3) he
was subjected to adverse treatment by the agency; and (4) a nexus,
or causal connection, exists between the protected activity and the
adverse treatment.1 Whitmire v. Department of the Air Force, EEOC
Appeal No. 01A00340 (September 25, 2000. While the AJ questioned whether
complainant established that he was subjected to an adverse action, the
AJ concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions, and complainant did not demonstrate pretext.
In so finding, the AJ assumed that complainant established a prima facie
case of reprisal. Next, he held that the agency stated legitimate,
nondiscriminatory reasons for its actions, that it took appropriate
actions to manage its resources and reiterate agency policy in regard
to use of agency email and employee time. Finally, the AJ concluded
that complainant did not demonstrate pretext, that is, that the agency's
actions were taken to discriminate against him. We note, in addition,
that complainant did not show, inter alia, that the management officials
involved in these matters were aware of his prior EEO activity, that
he was aggrieved or subjected to an adverse action, and that a nexus
existed between his prior EEO activity and the matters at issue herein.
Complainant contended that, after he was successful in obtaining relief
for an employee he represented in 1997, agency managers began to take
action against him. This prior activity, however, occurred too long ago
to establish a causal connection to the present matters. See fn. 1.
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law. See 29 C.F.R. § 1614.405(a); EEOC Management Directive 110,
Chapter 9, § VI.A. (November 9, 1999).
Initially, we consider whether the AJ properly issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue
a decision without a hearing when s/he finds that there are no genuine
issues of material fact. 29 C.F.R. § 1614.109(g). This regulation
is patterned after the summary judgment procedure in the Federal Rules
of Civil Procedure, Rule 56, and the U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the
substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). The AJ may properly issue a decision
without a hearing only upon a determination that the record has been
adequately developed for summary disposition. See Petty v. Department
of Defense, EEOC Appeal No. 0120024206 (July 11, 2003).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision,
because the AJ's issuance of a decision without a hearing was appropriate,
and the preponderance of the evidence of record does not establish that
discrimination occurred. | Miloslav Muller,
Complainant,
v.
Ed Schafer,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120082758
Agency No. FSIS-2005-00682
Hearing No. 540-2007-00189X
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts complainant's
appeal from the agency's April 16, 2008, final order concerning his equal
employment opportunity (EEO) complaint alleging 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.
At the time of his complaint, dated August 6, 2005, complainant worked as
a Veterinary Medical Officer, in the Animal and Plant Health Inspection
Services (APHIS), in the Albuquerque, New Mexico area. Complainant
alleged that the agency discriminated against him in reprisal for prior
protected EEO activity when, acting as a representative for an employee
in the Food Safety and Inspection Service (FSIS) in an EEO matter, (a)
he was orally admonished by a FSIS official for using the agency's email
system for non-government business; and (b) a FSIS manager wrote a letter
to APHIS officials rebuking complainant's use of agency equipment and
facilities for non-government business. Following an investigation,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). On April 1, 2008, the AJ issued a decision without a hearing,
granting the agency's Motion for summary judgment and finding that the
agency did not discriminate against complainant.
As noted by the AJ, in analysis of claims claiming disparate treatment
taken in reprisal, we follow the three-part scheme of McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973), that is, complainant can
establish a prima facie case of reprisal discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Admin., EEOC Request
No. 05960403 (December 6, 1996). Specifically, in a reprisal claim,
and in accordance with the burdens set forth in McDonnell Douglas,
supra, to establish a prima facie case of reprisal, he must show that:
(1) he engaged in a prior protected activity; (2) the official acting
on behalf of the agency was aware of the protected activity; (3) he
was subjected to adverse treatment by the agency; and (4) a nexus,
or causal connection, exists between the protected activity and the
adverse treatment.1 Whitmire v. Department of the Air Force, EEOC
Appeal No. 01A00340 (September 25, 2000. While the AJ questioned whether
complainant established that he was subjected to an adverse action, the
AJ concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions, and complainant did not demonstrate pretext.
In so finding, the AJ assumed that complainant established a prima facie
case of reprisal. Next, he held that the agency stated legitimate,
nondiscriminatory reasons for its actions, that it took appropriate
actions to manage its resources and reiterate agency policy in regard
to use of agency email and employee time. Finally, the AJ concluded
that complainant did not demonstrate pretext, that is, that the agency's
actions were taken to discriminate against him. We note, in addition,
that complainant did not show, inter alia, that the management officials
involved in these matters were aware of his prior EEO activity, that
he was aggrieved or subjected to an adverse action, and that a nexus
existed between his prior EEO activity and the matters at issue herein.
Complainant contended that, after he was successful in obtaining relief
for an employee he represented in 1997, agency managers began to take
action against him. This prior activity, however, occurred too long ago
to establish a causal connection to the present matters. See fn. 1.
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law. See 29 C.F.R. § 1614.405(a); EEOC Management Directive 110,
Chapter 9, § VI.A. (November 9, 1999).
Initially, we consider whether the AJ properly issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue
a decision without a hearing when s/he finds that there are no genuine
issues of material fact. 29 C.F.R. § 1614.109(g). This regulation
is patterned after the summary judgment procedure in the Federal Rules
of Civil Procedure, Rule 56, and the U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the
substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). The AJ may properly issue a decision
without a hearing only upon a determination that the record has been
adequately developed for summary disposition. See Petty v. Department
of Defense, EEOC Appeal No. 0120024206 (July 11, 2003).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision,
because the AJ's issuance of a decision without a hearing was appropriate,
and the preponderance of the evidence of record does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
__10/24/2008________________
Date
1 To demonstrate nexus based on temporal proximity, the period of
time separating the events must be very close. See Clark County School
District v. Breeden, 532 U.S. 268 (2001) (in order to establish sufficient
evidence of causality, the time period between the employer's initial
knowledge of the prior protected activity and the adverse employment
action must be "very close;" a three month time period was not proximate
enough to establish a causal nexus); EEOC Compliance Manual, Section 8,
Retaliation, pp. 8-18 (to support a finding of unlawful retaliation,
there must be proof that the acting agency official(s) took the action
at issue because of complainant's prior protected activity and sought
to deter complainant or others).
??
??
??
??
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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4,913 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120082398.txt | 0120082398.txt | TXT | text/plain | 10,551 | Betty J. Hooker, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Department of Defense Education Activity), Agency. | March 10, 2008 | Appeal Number: 0120082398
Case Facts:
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts complainant's
appeal from the agency's March 10, 2008 final decision concerning
her equal employment opportunity (EEO) complaint alleging 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.
At the time of the events at issue, complainant was employed by the
agency as an Office Automation Assistant, GS-5, from December 11, 2005,
to her resignation on September 25, 2006. Complainant alleged that the
agency discriminated against her on the bases of sex (female), color
(Black) and in reprisal for prior protected EEO activity when:
(1) on June 28, 2006, she received a Memorandum of Counseling, dated June
26, 2006, subject: Refusal to discuss work/Insubordination, and on July
5, 2006, she received another Memorandum of Counseling, dated June 30,
2006, subject: Refusal to Follow Instructions/Insubordination; and
(2) on September 20, 2006, her second-line supervisor served her a Letter
of Reprimand dated September 18, 2006.
The record indicates that complainant initially told her first-level
supervisor (S1) that she intended to file an EEO complaint in March
2006, and sent S1 an e-mail on June 23, 2006 again indicating she
was intending to file an EEO complaint over various workplace issues.
Shortly thereafter, complainant received the two memoranda of counseling
from her second-level supervisor (S2), and several months later the
letter of reprimand. Complainant asserts these actions were taken as
a result of sex and race discrimination, as well as in retaliation for
her earlier complaint.
At the conclusion of the investigation, complainant was provided
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ) or accept a
final agency decision. Complainant requested a final agency decision.
In accordance with complainant's request, the agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). In its final decision,
the agency found no discrimination or retaliation occurred.
A claim of disparate treatment is examined under the three-party
Legal Analysis:
the Commission accepts complainant's
appeal from the agency's March 10, 2008 final decision concerning
her equal employment opportunity (EEO) complaint alleging 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.
At the time of the events at issue, complainant was employed by the
agency as an Office Automation Assistant, GS-5, from December 11, 2005,
to her resignation on September 25, 2006. Complainant alleged that the
agency discriminated against her on the bases of sex (female), color
(Black) and in reprisal for prior protected EEO activity when:
(1) on June 28, 2006, she received a Memorandum of Counseling, dated June
26, 2006, subject: Refusal to discuss work/Insubordination, and on July
5, 2006, she received another Memorandum of Counseling, dated June 30,
2006, subject: Refusal to Follow Instructions/Insubordination; and
(2) on September 20, 2006, her second-line supervisor served her a Letter
of Reprimand dated September 18, 2006.
The record indicates that complainant initially told her first-level
supervisor (S1) that she intended to file an EEO complaint in March
2006, and sent S1 an e-mail on June 23, 2006 again indicating she
was intending to file an EEO complaint over various workplace issues.
Shortly thereafter, complainant received the two memoranda of counseling
from her second-level supervisor (S2), and several months later the
letter of reprimand. Complainant asserts these actions were taken as
a result of sex and race discrimination, as well as in retaliation for
her earlier complaint.
At the | Betty J. Hooker,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Department of Defense Education Activity),
Agency.
Appeal No. 0120082398
Agency No. EU-FY06-067
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts complainant's
appeal from the agency's March 10, 2008 final decision concerning
her equal employment opportunity (EEO) complaint alleging 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.
At the time of the events at issue, complainant was employed by the
agency as an Office Automation Assistant, GS-5, from December 11, 2005,
to her resignation on September 25, 2006. Complainant alleged that the
agency discriminated against her on the bases of sex (female), color
(Black) and in reprisal for prior protected EEO activity when:
(1) on June 28, 2006, she received a Memorandum of Counseling, dated June
26, 2006, subject: Refusal to discuss work/Insubordination, and on July
5, 2006, she received another Memorandum of Counseling, dated June 30,
2006, subject: Refusal to Follow Instructions/Insubordination; and
(2) on September 20, 2006, her second-line supervisor served her a Letter
of Reprimand dated September 18, 2006.
The record indicates that complainant initially told her first-level
supervisor (S1) that she intended to file an EEO complaint in March
2006, and sent S1 an e-mail on June 23, 2006 again indicating she
was intending to file an EEO complaint over various workplace issues.
Shortly thereafter, complainant received the two memoranda of counseling
from her second-level supervisor (S2), and several months later the
letter of reprimand. Complainant asserts these actions were taken as
a result of sex and race discrimination, as well as in retaliation for
her earlier complaint.
At the conclusion of the investigation, complainant was provided
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ) or accept a
final agency decision. Complainant requested a final agency decision.
In accordance with complainant's request, the agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). In its final decision,
the agency found no discrimination or retaliation occurred.
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Management witnesses stated that complainant and a coworker became
involved in a disagreement which management became aware of because
they both shared emails relating to the dispute with S1. In an effort
to resolve the issue, management stated that S2 held a meeting in her
office to discuss the matter with complainant. S1 was also in attendance.
During the course of this meeting, S1 and S2 allege complainant engaged in
insubordinate and inappropriate behavior towards S2 which resulted in the
June 26 letter of counseling. That behavior is more fully detailed in the
letter and essentially indicates complainant repeatedly refused to discuss
matters with S2, including the status of a work task. Several days
later, on June 30, S2 issued an additional letter of counseling, alleging
further refusal to follow instructions/insubordination and instructing
complainant to "respond to emails in an appropriate fashion, to answer
questions relative to her job expeditiously, and to ask questions of her
supervisor when she did not understand." The details of the events that
precipitated this memo also appear on its face. Finally, in September,
S2 issued complainant a letter of reprimand concerning several incidents
of failure to properly request leave and unauthorized departure from work.
Both S1 and S2 denied anything but complainant's misconduct resulted
in these actions. The Commission concludes that agency management has
articulated legitimate, nondiscriminatory reasons for its actions, which
complainant failed to prove were pretext for unlawful discrimination or
retaliation.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
August 1, 2008______
Date
1 On appeal, complainant does not challenge the November 30, 2006 partial
dismissal issued by the agency regarding her other claims (on June 7,
2006, the Education Division management without notification, transferred
all phones in the division to complainant to answer while other staff
went away to an offsite meeting and treating her less favorably than
the other administrative staff; from December 2005 to March 30, 2006,
she was subjected to a hostile work environment; and was subjected to
adverse action after informing management on June 23, 2006, that she
was going to file an EEO complaint). Therefore, we have not addressed
these issues in our decision.
??
??
??
??
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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"438 U.S. 567",
"450 U.S. 248",
"509 U.S. 502",
"460 U.S. 711",
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4,914 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120082376.txt | 0120082376.txt | TXT | text/plain | 10,140 | Marjuna C. Smith, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury (Internal Revenue Service), Agency. | April 30, 2008 | Appeal Number: 0120082376
Legal Analysis:
the Commission
AFFIRMS the agency's final decision.
At the time of events giving rise to this complaint, complainant worked
as a Data Transcriber, GS-0356-04, at the agency's Wage and Investment
Service Centers, Data Conversion Operations, in Kansas City, Missouri.
On March 27, 2007, complainant first contacted an EEO Counselor to
allege discrimination as set forth above. Complainant's concerns
could not be resolved, and on May 22, 2007, complainant the instant
formal EEO complaint alleging that the agency discriminated against
complainant on the basis of race (Black) when, on or about January 22,
2007, she was awarded a lower grade and pay in a temporary promotion
than similarly situated employees. Complainant further alleged that the
agency had temporarily promoted her to the wrong level in 2005, which
in turn led to her being temporarily promoted to the wrong level again
in 2007. Complainant did not claim that her 2006 temporary promotion
was discriminatory.
At the
Final Decision:
Accordingly, we find that the agency properly dismissed this claim as untimely. We note, however, that the agency considered the 2005 promotion as background to the claim regarding the 2007 promotion. To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 134 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995). In this case, we may bypass discussion of the prima facie case, because the agency has proffered legitimate, non-discriminatory explanations for its actions. The agency explained that it did err in setting complainant's pay level for her 2006 temporary promotion, but that the error was corrected once it was put on notice. Further, the agency explained that while complainant asserted that she possessed adequate time-in-grade for a higher level temporary promotion than she received in 2007, time-in-grade is calculated in terms of weeks served (52 weeks equals one year) rather than in tax seasons (where one season would equal one year). Therefore, complainant did not possess adequate time-in-grade for a higher level position. The agency has met its burden to explain its actions. Complainant has not adduced any evidence or argument to show that the agency's explanation is a pretext for race discrimination. Accordingly, the final agency decision is AFFIRMED. | Marjuna C. Smith,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120082376
Agency No. EEODFS070578F
DECISION
On April 30, 2008, complainant filed an appeal from the agency's March 31,
2008, final decision concerning her equal employment opportunity (EEO)
complaint alleging 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
At the time of events giving rise to this complaint, complainant worked
as a Data Transcriber, GS-0356-04, at the agency's Wage and Investment
Service Centers, Data Conversion Operations, in Kansas City, Missouri.
On March 27, 2007, complainant first contacted an EEO Counselor to
allege discrimination as set forth above. Complainant's concerns
could not be resolved, and on May 22, 2007, complainant the instant
formal EEO complaint alleging that the agency discriminated against
complainant on the basis of race (Black) when, on or about January 22,
2007, she was awarded a lower grade and pay in a temporary promotion
than similarly situated employees. Complainant further alleged that the
agency had temporarily promoted her to the wrong level in 2005, which
in turn led to her being temporarily promoted to the wrong level again
in 2007. Complainant did not claim that her 2006 temporary promotion
was discriminatory.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b), in which it concluded (1) that complainant's
allegation regarding the 2005 temporary promotion was untimely; that even
if the allegation were found timely, there had been no discrimination;
and that there had been no discrimination in connection with the 2007
temporary promotion as well.
The instant appeal followed. Neither party has filed a statement
supporting or opposing the appeal.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
As a preliminary matter, we address the agency's dismissal
of complainant's claim regarding the 2005 temporary promotion.
The Commission's regulations provide that an aggrieved individual
must contact an EEO Counselor within 45 days of the alleged incident of
unlawful discrimination. 29 C.F.R. § 1614.105(a)(1). The Commission uses
a "reasonable suspicion" standard, meaning that the time for counselor
contact is calculated from the point at which the individual suspects or
reasonably should suspect discrimination, but before supporting evidence
has been acquired. The record reflects that complainant suspected
that something "was not as it should be" regarding her 2005 temporary
promotion during 2006, when she became aware that a White employee had
been placed at a higher pay level than she had, but did not contact
an EEO Counselor until March 27, 2007. Accordingly, we find that the
agency properly dismissed this claim as untimely. We note, however,
that the agency considered the 2005 promotion as background to the claim
regarding the 2007 promotion.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 134 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
In this case, we may bypass discussion of the prima facie case,
because the agency has proffered legitimate, non-discriminatory
explanations for its actions. The agency explained that it did err
in setting complainant's pay level for her 2006 temporary promotion,
but that the error was corrected once it was put on notice. Further,
the agency explained that while complainant asserted that she possessed
adequate time-in-grade for a higher level temporary promotion than she
received in 2007, time-in-grade is calculated in terms of weeks served
(52 weeks equals one year) rather than in tax seasons (where one season
would equal one year). Therefore, complainant did not possess adequate
time-in-grade for a higher level position.
The agency has met its burden to explain its actions. Complainant
has not adduced any evidence or argument to show that the agency's
explanation is a pretext for race discrimination. Accordingly, the
final agency decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
October 24, 2008
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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4,915 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120082342.txt | 0120082342.txt | TXT | text/plain | 10,765 | Lynne Cunningham, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency. | March 26, 2008 | Appeal Number: 0120082342
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 26, 2008, dismissing her 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.
The agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2),
for untimely EEO counselor contact.
At the time of the events at issue, complainant, a physician, was
employed by Medical Doctors Associates (MDA), a subcontractor to Altos
Federal Group, which had a contract with the agency to supply medical
services at the Martin Army Community Hospital (MACH), Fort Benning,
Georgia. The record indicates that on August 6, 2007, complainant
was informed that her MACH privileges had been placed in "abeyance,"
which apparently meant that her privilege to practice medicine at MACH
had been temporarily suspended. Effective August 30, 2007, complainant
resigned from her position at MACH.
The record indicates that complainant contacted this Commission's
Atlanta District Office and filed a charge of discrimination, dated
January 11, 2008, against the agency. The EEOC's Atlanta District
Office sent the agency a request for information on January 17, 2008,
and shortly thereafter referred complainant to the agency's EEO office
at Fort Benning. The agency conceded that it met the criteria to be
considered a joint employer of complainant, and provided her with EEO
counseling and a notice of right to file a formal complaint under the
29 C.F.R. Part 1614 process.
In her formal complaint, filed on March 18, 2008, complainant
alleged that she was subjected to discrimination on the basis of race
(African-American) and retaliation when she received a letter dated
August 6, 2007, placing her hospital medical privileges in abeyance,
and when she was forced to resign from the position she occupied at MACH
under the perception that she would be fired (constructive discharge).
The complaint also alleged that the agency was refusing to verify
her employment which prevents her from pursuing employment at other
hospitals.1 In a decision dated March 26, 2008, the agency dismissed
the complaint for failure to seek pre-complaint counseling within 45
days of the alleged discriminatory matters. The instant appeal followed.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. There is
no dispute that complainant did not meet this time limitation. However,
the time limitation is subject to waiver, estoppel and equitable tolling.
29 C.F.R. § 1614.604(c). In the instant case, we find that complainant,
as an employee of a subcontractor of the agency, was understandably
confused about whether she needed to raise her charge of discrimination
in the private sector process through EEOC's Atlanta District Office
or in the federal sector complaint process by seeking EEO counseling
through the agency. Complainant contacted the EEOC's Atlanta District
Office within the time frames provided for in that process.2 Her charge
was then referred to the agency, which subsequently determined it was
complainant's joint employer and that she was entitled to use the federal
sector process. Under these unique circumstances, we conclude that it
is appropriate to waive the forty-five day time limitation for seeking
EEO counseling. | Lynne Cunningham,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120082342
Agency No. ARBENNING08JAN00266
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 26, 2008, dismissing her 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.
The agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2),
for untimely EEO counselor contact.
At the time of the events at issue, complainant, a physician, was
employed by Medical Doctors Associates (MDA), a subcontractor to Altos
Federal Group, which had a contract with the agency to supply medical
services at the Martin Army Community Hospital (MACH), Fort Benning,
Georgia. The record indicates that on August 6, 2007, complainant
was informed that her MACH privileges had been placed in "abeyance,"
which apparently meant that her privilege to practice medicine at MACH
had been temporarily suspended. Effective August 30, 2007, complainant
resigned from her position at MACH.
The record indicates that complainant contacted this Commission's
Atlanta District Office and filed a charge of discrimination, dated
January 11, 2008, against the agency. The EEOC's Atlanta District
Office sent the agency a request for information on January 17, 2008,
and shortly thereafter referred complainant to the agency's EEO office
at Fort Benning. The agency conceded that it met the criteria to be
considered a joint employer of complainant, and provided her with EEO
counseling and a notice of right to file a formal complaint under the
29 C.F.R. Part 1614 process.
In her formal complaint, filed on March 18, 2008, complainant
alleged that she was subjected to discrimination on the basis of race
(African-American) and retaliation when she received a letter dated
August 6, 2007, placing her hospital medical privileges in abeyance,
and when she was forced to resign from the position she occupied at MACH
under the perception that she would be fired (constructive discharge).
The complaint also alleged that the agency was refusing to verify
her employment which prevents her from pursuing employment at other
hospitals.1 In a decision dated March 26, 2008, the agency dismissed
the complaint for failure to seek pre-complaint counseling within 45
days of the alleged discriminatory matters. The instant appeal followed.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. There is
no dispute that complainant did not meet this time limitation. However,
the time limitation is subject to waiver, estoppel and equitable tolling.
29 C.F.R. § 1614.604(c). In the instant case, we find that complainant,
as an employee of a subcontractor of the agency, was understandably
confused about whether she needed to raise her charge of discrimination
in the private sector process through EEOC's Atlanta District Office
or in the federal sector complaint process by seeking EEO counseling
through the agency. Complainant contacted the EEOC's Atlanta District
Office within the time frames provided for in that process.2 Her charge
was then referred to the agency, which subsequently determined it was
complainant's joint employer and that she was entitled to use the federal
sector process. Under these unique circumstances, we conclude that it
is appropriate to waive the forty-five day time limitation for seeking
EEO counseling.
Accordingly, the agency's dismissal of the complaint is REVERSED and the
complaint is REMANDED to the agency for further processing pursuant to
the Order set forth below.
ORDER (E0408)
The agency is ordered to process the remanded complaint in accordance
with 29 C.F.R. § 1614.108 et seq. 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 (K0408)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (R0408)
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 (Z0408)
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
August 4, 2008
__________________
Date
1 We note that the agency did not specifically address this claim in
its final decision. However, we are assuming it was also included in
the agency's dismissal of the complaint.
2 Generally, in the private sector, individuals have 180 days to file
a charge with the Commission.
??
??
??
??
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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4,916 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120082265.txt | 0120082265.txt | TXT | text/plain | 10,558 | Kim M. Brantley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | April 16, 2008 | Appeal Number: 0120082265
Background:
At the time of events giving rise to this complaint, complainant worked
as a Mail Handler Equipment Operator at the Philadelphia Bulk Mail
Center in Philadelphia, Pennsylvania. The record reveals that on July
1, 2007, complainant interviewed for the Associate Supervisor Program
(ASP). In a letter dated July 17, 2007, complainant was informed by
the ASP Coordinator that the ASP Review Committee gave complainant an
"overall interview rating" score of "failed." The score was based on
complainant's responses to interview questions. On or about October
8, 2007, complainant requested to be placed back on the supervisors'
schedule. His request subsequently was denied.
On October 9, 2007, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of reprisal for prior protected
EEO activity when:
1. On or about July 17, 2007, he learned that he had been rated "failed"
for the interview for the ASP and as a result was not selected for the
program;
2. On or about October 8, 2007, he requested to be placed back on the
supervisors' schedule and his request subsequently was denied.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that complainant failed
to prove that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends that his qualifications were superior
to a specific candidate who had applied for the ASP.
Legal Analysis:
the Commission affirms the agency's final
decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Mail Handler Equipment Operator at the Philadelphia Bulk Mail
Center in Philadelphia, Pennsylvania. The record reveals that on July
1, 2007, complainant interviewed for the Associate Supervisor Program
(ASP). In a letter dated July 17, 2007, complainant was informed by
the ASP Coordinator that the ASP Review Committee gave complainant an
"overall interview rating" score of "failed." The score was based on
complainant's responses to interview questions. On or about October
8, 2007, complainant requested to be placed back on the supervisors'
schedule. His request subsequently was denied.
On October 9, 2007, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of reprisal for prior protected
EEO activity when:
1. On or about July 17, 2007, he learned that he had been rated "failed"
for the interview for the ASP and as a result was not selected for the
program;
2. On or about October 8, 2007, he requested to be placed back on the
supervisors' schedule and his request subsequently was denied.
At the | Kim M. Brantley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082265
Agency No. 1C-192-0016-07
DECISION
On April 16, 2008, complainant filed an appeal from the agency's March
25, 2008 final decision concerning his equal employment opportunity (EEO)
complaint alleging 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. The appeal is accepted pursuant to 29 C.F.R. § 1614.405(a).
For the following reasons, the Commission affirms the agency's final
decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Mail Handler Equipment Operator at the Philadelphia Bulk Mail
Center in Philadelphia, Pennsylvania. The record reveals that on July
1, 2007, complainant interviewed for the Associate Supervisor Program
(ASP). In a letter dated July 17, 2007, complainant was informed by
the ASP Coordinator that the ASP Review Committee gave complainant an
"overall interview rating" score of "failed." The score was based on
complainant's responses to interview questions. On or about October
8, 2007, complainant requested to be placed back on the supervisors'
schedule. His request subsequently was denied.
On October 9, 2007, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of reprisal for prior protected
EEO activity when:
1. On or about July 17, 2007, he learned that he had been rated "failed"
for the interview for the ASP and as a result was not selected for the
program;
2. On or about October 8, 2007, he requested to be placed back on the
supervisors' schedule and his request subsequently was denied.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that complainant failed
to prove that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends that his qualifications were superior
to a specific candidate who had applied for the ASP.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, because the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming, arguendo, that complainant established a prima facie
case of retaliation, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, with regard to
claim (1), the members of the ASP Review Committee stated that complainant
failed to provide adequate responses during his interview. With regard
to claim (2), two managers provided affidavit testimony that complainant
was not denied the opportunity to be placed on the supervisor's list
but, instead, others who had requested to be placed on the list had to
be accommodated first.
Because we have found that the agency articulated legitimate,
nondiscriminatory reasons for its actions, we turn to whether complainant
established that the agency's proffered reasons were a pretext for
retaliation. We find that complainant failed to do so. With regard
to claim (1), complainant argues that an identified selectee for the
position was not qualified. However, we find that this alone does
not call into question the veracity of the reasons proffered for not
selecting complainant. The record reveals that complainant was not
considered for the position because he failed the interview portion
of the selection process. Complainant has offered no evidence to show
that the members of the ASP Review Committee's reason for failing him
were a pretext for retaliation. With regard to claim (2), complainant
also failed to offer any evidence to show that the agency's proffered
reason was a pretext for retaliation. Complainant asserted that he had
been told by managers that he was not selected for the position in claim
(1) or placed on the supervisor list in claim (2) because of his prior
EEO activity. We find, however, that complainant has failed to offer
any corroborating evidence. Additionally, with regard to claim (1),
the record reveals that none of the members of the ASP Review Committee
knew of complainant's prior EEO activity. Accordingly, we find that
complainant failed to establish by a preponderance of the evidence that
he was discriminated against as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the final
agency decision finding that complainant was not retaliated against as
he alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
__________________
Date
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4,917 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120081532.txt | 0120081532.txt | TXT | text/plain | 8,870 | Eddie Brooks, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | January 25, 2008 | Appeal Number: 0120081532
Complaint Allegations:
In his complaint, complainant alleged that he was subjected to discrimination on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, since August 2006, he has been subjected to a hostile work environment, including not being allowed to attend weekly safety meetings with his coworkers. He also alleged that management has ignored his complaints about the hostile work environment, as well as his request to transfer to another facility to escape it. Complainant asserted that he contacted an EEO counselor on October 25, 2007, because he made an attempt to discuss the situation with his supervisor sometime in October 2007, and the supervisor refused to speak with him about the issue. The Commission finds that the complaint states a claim under the EEOC regulations because complainant has shown 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The Commission notes that the EEO counselor's report states that the supervisor acknowledges that "complainant should be allowed to attend the safety meetings with his unit." Further, with respect to complainant EEO's counselor contact, the Commission finds that complainant's contact was timely from the most recent incident of the alleged harassment-when, in October 2007, the supervisor refused to discuss his request to resume attending the safety meetings. Accordingly, the agency's final decision dismissing complainant's complaint is reversed. ORDER (E0408)
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 25, 2008, 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.
Legal Analysis:
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely
EEO Counselor contact and for failure to state a claim.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (African-American) and reprisal
for prior protected EEO activity under Title VII of the Civil Rights
Act of 1964 when, since August 2006, he has been subjected to a hostile
work environment, including not being allowed to attend weekly safety
meetings with his coworkers. He also alleged that management has ignored
his complaints about the hostile work environment, as well as his request
to transfer to another facility to escape it. Complainant asserted that
he contacted an EEO counselor on October 25, 2007, because he made an
attempt to discuss the situation with his supervisor sometime in October
2007, and the supervisor refused to speak with him about the issue.
The Commission finds that the complaint states a claim under the EEOC
regulations because complainant has shown 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. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). The Commission notes that
the EEO counselor's report states that the supervisor acknowledges that
"complainant should be allowed to attend the safety meetings with his
unit." Further, with respect to complainant EEO's counselor contact,
the Commission finds that complainant's contact was timely from the
most recent incident of the alleged harassment-when, in October 2007,
the supervisor refused to discuss his request to resume attending the
safety meetings.
Final Decision:
Accordingly, the agency's final decision dismissing complainant's complaint is reversed. | Eddie Brooks,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081532
Agency No. 1E801001008
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 25, 2008, 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.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely
EEO Counselor contact and for failure to state a claim.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (African-American) and reprisal
for prior protected EEO activity under Title VII of the Civil Rights
Act of 1964 when, since August 2006, he has been subjected to a hostile
work environment, including not being allowed to attend weekly safety
meetings with his coworkers. He also alleged that management has ignored
his complaints about the hostile work environment, as well as his request
to transfer to another facility to escape it. Complainant asserted that
he contacted an EEO counselor on October 25, 2007, because he made an
attempt to discuss the situation with his supervisor sometime in October
2007, and the supervisor refused to speak with him about the issue.
The Commission finds that the complaint states a claim under the EEOC
regulations because complainant has shown 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. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). The Commission notes that
the EEO counselor's report states that the supervisor acknowledges that
"complainant should be allowed to attend the safety meetings with his
unit." Further, with respect to complainant EEO's counselor contact,
the Commission finds that complainant's contact was timely from the
most recent incident of the alleged harassment-when, in October 2007,
the supervisor refused to discuss his request to resume attending the
safety meetings.
Accordingly, the agency's final decision dismissing complainant's
complaint is reversed.
ORDER (E0408)
The agency is ordered to process the remanded claim in accordance with
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 (K0408)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (R0408)
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 (Z0408)
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 24, 2008
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
| [
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4,918 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120081261.txt | 0120081261.txt | TXT | text/plain | 9,446 | Rosemary Garity, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | December 19, 2007 | Appeal Number: 0120081261
Complaint Allegations:
In her complaint, complainant alleged that she was subjected to discrimination on the basis of reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when: 1. On or around August 23, 2007 and October 16, 2007 complainant was charged Leave Without Pay (LWOP).
Legal Analysis:
The Commission has held that an employee cannot use the EEO
complaint process to lodge a collateral attack on another proceeding.
See Wills v. Department of Defense, EEOC Request No. 05970596 (July
30, 1998); Kleinman v. United States Postal Service, EEOC Request No.
05940585 (September 22, 1994); Lingad v. United States Postal Service,
EEOC Request No. 05930106 (June 25, 1993). The record shows that during
the dates in question, complainant was appearing in Federal District
Court as part of a lawsuit against the agency. The agency argued that
the proper forum for complainant to have raised her complaint about LWOP
was before the Court itself.
The Commission notes that agency appears to be confused about what
constitutes an impermissible collateral attack on another proceeding.
If complainant were to seek to use the EEO process to counter or negate
the findings of another proceeding, that would constitute a collateral
attack. However in the instant case, complainant is not seeking to
contest the finding of the Court, she is contesting the agency's decision
to charge her LWOP for the time she spent at Court. The agency could
have charged her administrative leave, for example, or annual leave,
or some other type of leave, including LWOP. It was the agency that
chose to charge her with LWOP, not the Court. We make no determination
as to what would have been the appropriate type of leave to have charged
complainant, but any decision about what type of leave to charge her was
the agency's decision and not the decision of the Court. Contrary to
the FAD, complainant would not be able to raise the LWOP complaint
during her Court proceeding. As such, complainant correctly chose the
EEO forum and her complaint clearly states a claim of discrimination. | Rosemary Garity,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081261
Agency No. 4E890000508
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 19, 2007, dismissing her 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. For the
reasons provided below, we REVERSE and REMAND the complaint.
In her complaint, complainant alleged that she was subjected to
discrimination on the basis of reprisal for prior protected EEO activity
under an EEO statute that was unspecified in the record when:
1. On or around August 23, 2007 and October 16, 2007 complainant was
charged Leave Without Pay (LWOP).
The agency dismissed the claim for failure to state a claim, on the
grounds that the claim constituted a collateral attack against another
proceeding. The Commission has held that an employee cannot use the EEO
complaint process to lodge a collateral attack on another proceeding.
See Wills v. Department of Defense, EEOC Request No. 05970596 (July
30, 1998); Kleinman v. United States Postal Service, EEOC Request No.
05940585 (September 22, 1994); Lingad v. United States Postal Service,
EEOC Request No. 05930106 (June 25, 1993). The record shows that during
the dates in question, complainant was appearing in Federal District
Court as part of a lawsuit against the agency. The agency argued that
the proper forum for complainant to have raised her complaint about LWOP
was before the Court itself.
The Commission notes that agency appears to be confused about what
constitutes an impermissible collateral attack on another proceeding.
If complainant were to seek to use the EEO process to counter or negate
the findings of another proceeding, that would constitute a collateral
attack. However in the instant case, complainant is not seeking to
contest the finding of the Court, she is contesting the agency's decision
to charge her LWOP for the time she spent at Court. The agency could
have charged her administrative leave, for example, or annual leave,
or some other type of leave, including LWOP. It was the agency that
chose to charge her with LWOP, not the Court. We make no determination
as to what would have been the appropriate type of leave to have charged
complainant, but any decision about what type of leave to charge her was
the agency's decision and not the decision of the Court. Contrary to
the FAD, complainant would not be able to raise the LWOP complaint
during her Court proceeding. As such, complainant correctly chose the
EEO forum and her complaint clearly states a claim of discrimination.
Accordingly, we REMAND the case for further processing in accordance
with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 20, 2008
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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4,919 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120081227.txt | 0120081227.txt | TXT | text/plain | 8,705 | Donald J. Campbell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency. | May 9, 2007 | Appeal Number: 0120081227
Case Facts:
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. In his complainant, complainant,
a full-time Material Management Specialist, alleged discrimination on the
bases of race (Caucasian), sex (male), color (white), and age (62) when:
1. On May 9, 2007, complainant claimed an unspecified incident occurred.
2. On June 13, 2007, complainant was made aware that he was not the
successful candidate for the Manager of Material Service Center position,
Vacancy No. 14230.
On August 31, 2007, the agency issued a decision dismissing claim
1 pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor
Contact. Additionally, the agency issued a final decision on December 18,
2007, finding no discrimination as to claim 2. Thereafter, complainant
filed the instant appeal.
Claim 1
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. The Commission's regulations, however,
provide that the time limit will be extended when the complainant shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by circumstances
beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or the
Commission. See 29 C.F.R. § 1614.105(a)(2).
The Commission finds that the agency properly dismissed claim 1 for
untimely EEO Counselor Contact. Significantly, complainant did not
state exactly what occurred on May 9, 2007. Additionally, complainant
did not initiate contact with an EEO Counselor until July 5, 2007,
which is beyond the 45-day limitation period. Moreover, on appeal,
complainant has presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact.
Claims 2
We find that the agency articulated a legitimate, nondiscriminatory
reason for not selecting complainant for the Manager of Material Service
Center position, Vacancy No. 14230. The Manager of the Material Service
Center (Manager), the selecting official, stated that she has known
complainant since January 2004. The Manager stated that there were four
(4) applicants for the vacancy and that she interviewed all applicants,
including complainant. The Manager said that that Team Leader of the
Material Service Center (Team Leader) participated in the four interviews.
The Manager claimed that she considered the qualifications requirements,
candidate applications and their relative interview strength when
making her selection on who best met the qualification requirements
for the vacancy. The Manager asserted that she selected the selectee
for the vacancy due to his managerial experience, understanding of
cross-organizational and strategic issues, and specific experience in
a similar environment. The Manager articulated that complainant, while
having an excellent specialized experience and tactical knowledge, did not
demonstrate superior managerial and interpersonal relationship abilities.
The Team Leader said that he sat in with the Manager for the interviews
of the four applicants. The Team Leader stated that he did not review the
applicants' Forms 991 and ranked complainant as having the best interview.
The Team Leader asserted that applicant D, applicant B (the selectee) and
applicant C were ranked by him as second, third and fourth respectively.
The Team Leader stated that the Manager did not tell him who she was
going to select and thanked him for his assistance during the interview.
Complainant failed to rebut the agency's articulated legitimate,
nondiscriminatory reasons for the selection decision. Furthermore,
complainant failed to show that his qualifications for the Manager
of Material Service Center position were plainly superior to the
selectee's qualifications or that the agency's action was motivated
by discrimination. Complainant failed to show, by a preponderance of
the evidence, that he was discriminated against on the bases of race,
sex, color or age.
The agency's decision dismissing claim 1 and finding no discrimination
as to claim 2 is AFFIRMED. | Donald J. Campbell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120081227
Agency No. 6L-000-0012-07
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. In his complainant, complainant,
a full-time Material Management Specialist, alleged discrimination on the
bases of race (Caucasian), sex (male), color (white), and age (62) when:
1. On May 9, 2007, complainant claimed an unspecified incident occurred.
2. On June 13, 2007, complainant was made aware that he was not the
successful candidate for the Manager of Material Service Center position,
Vacancy No. 14230.
On August 31, 2007, the agency issued a decision dismissing claim
1 pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor
Contact. Additionally, the agency issued a final decision on December 18,
2007, finding no discrimination as to claim 2. Thereafter, complainant
filed the instant appeal.
Claim 1
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. The Commission's regulations, however,
provide that the time limit will be extended when the complainant shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by circumstances
beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or the
Commission. See 29 C.F.R. § 1614.105(a)(2).
The Commission finds that the agency properly dismissed claim 1 for
untimely EEO Counselor Contact. Significantly, complainant did not
state exactly what occurred on May 9, 2007. Additionally, complainant
did not initiate contact with an EEO Counselor until July 5, 2007,
which is beyond the 45-day limitation period. Moreover, on appeal,
complainant has presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact.
Claims 2
We find that the agency articulated a legitimate, nondiscriminatory
reason for not selecting complainant for the Manager of Material Service
Center position, Vacancy No. 14230. The Manager of the Material Service
Center (Manager), the selecting official, stated that she has known
complainant since January 2004. The Manager stated that there were four
(4) applicants for the vacancy and that she interviewed all applicants,
including complainant. The Manager said that that Team Leader of the
Material Service Center (Team Leader) participated in the four interviews.
The Manager claimed that she considered the qualifications requirements,
candidate applications and their relative interview strength when
making her selection on who best met the qualification requirements
for the vacancy. The Manager asserted that she selected the selectee
for the vacancy due to his managerial experience, understanding of
cross-organizational and strategic issues, and specific experience in
a similar environment. The Manager articulated that complainant, while
having an excellent specialized experience and tactical knowledge, did not
demonstrate superior managerial and interpersonal relationship abilities.
The Team Leader said that he sat in with the Manager for the interviews
of the four applicants. The Team Leader stated that he did not review the
applicants' Forms 991 and ranked complainant as having the best interview.
The Team Leader asserted that applicant D, applicant B (the selectee) and
applicant C were ranked by him as second, third and fourth respectively.
The Team Leader stated that the Manager did not tell him who she was
going to select and thanked him for his assistance during the interview.
Complainant failed to rebut the agency's articulated legitimate,
nondiscriminatory reasons for the selection decision. Furthermore,
complainant failed to show that his qualifications for the Manager
of Material Service Center position were plainly superior to the
selectee's qualifications or that the agency's action was motivated
by discrimination. Complainant failed to show, by a preponderance of
the evidence, that he was discriminated against on the bases of race,
sex, color or age.
The agency's decision dismissing claim 1 and finding no discrimination
as to claim 2 is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
April 23, 2010
__________________
Date
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4,920 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120080555.txt | 0120080555.txt | TXT | text/plain | 9,190 | Lynn M. Rogers, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency. | October 18, 2007 | Appeal Number: 0120080555
Case Facts:
Complainant filed a timely appeal with this Commission from a final
agency decision dated October 18, 2007, dismissing her 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.
In her formal complaint, complainant alleged that she was subjected to
discrimination on the basis of race (Asian) and, later added the basis
of reprisal for prior protected EEO activity, when the agency issued
her a rating of "6" (slightly above fully successful) for "Working
Relationships" for the 2006 - 2007 rating period.
The agency dismissed her complaint pursuant to 29 C.F.R. § 1614.107(a)(9),
abuse of process. Specifically, the agency stated that complainant has
complained about prior discretionary decisions by management in the past
and there is documentation of disciplinary problems with complainant to
support the rating given.
Pursuant to
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.107(a)(9), after strictly
applying criteria set forth in Commission decisions, an agency may
dismiss complaints that are "part of a clear pattern of misuse of the
EEO process for a purpose other than the prevention and elimination of
employment discrimination." The criteria requires:
(i)Evidence of multiple complaint filings; and (ii) [Claims] that are
similar or identical, lack specificity or involve matters previously
resolved; or (iii) Evidence of circumventing other administrative
processes, retaliating against the agency's in-house administrative
processes or overburdening the EEO complaint system.
Occasions in which application of the standards are deemed appropriate
must be rare, because of the strong policy in favor of preserving
a complainant's EEO rights whenever possible. See generally Love
v. Pullman, Inc., 404 U.S. 522 (1972); Wrenn v. Equal Employment
Opportunity Commission, EEOC Appeal No. 01932105 (August 19, 1993).
Upon review, the Commission finds that the agency argued the merits as
to why it issued the rating rather than providing evidence indicating
that complainant has used the EEO process "for a purpose other than the
prevention and elimination of employment discrimination." We therefore
find that the agency improperly dismissed complainant's complaint pursuant
to 29 C.F.R. § 1614.107(a)(9). We REVERSE the final agency decision
and remand the matter to the agency for further processing consistent
with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409. | Lynn M. Rogers,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120080555
Agency No. 6V1S07007
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated October 18, 2007, dismissing her 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.
In her formal complaint, complainant alleged that she was subjected to
discrimination on the basis of race (Asian) and, later added the basis
of reprisal for prior protected EEO activity, when the agency issued
her a rating of "6" (slightly above fully successful) for "Working
Relationships" for the 2006 - 2007 rating period.
The agency dismissed her complaint pursuant to 29 C.F.R. § 1614.107(a)(9),
abuse of process. Specifically, the agency stated that complainant has
complained about prior discretionary decisions by management in the past
and there is documentation of disciplinary problems with complainant to
support the rating given.
Pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(9), after strictly
applying criteria set forth in Commission decisions, an agency may
dismiss complaints that are "part of a clear pattern of misuse of the
EEO process for a purpose other than the prevention and elimination of
employment discrimination." The criteria requires:
(i)Evidence of multiple complaint filings; and (ii) [Claims] that are
similar or identical, lack specificity or involve matters previously
resolved; or (iii) Evidence of circumventing other administrative
processes, retaliating against the agency's in-house administrative
processes or overburdening the EEO complaint system.
Occasions in which application of the standards are deemed appropriate
must be rare, because of the strong policy in favor of preserving
a complainant's EEO rights whenever possible. See generally Love
v. Pullman, Inc., 404 U.S. 522 (1972); Wrenn v. Equal Employment
Opportunity Commission, EEOC Appeal No. 01932105 (August 19, 1993).
Upon review, the Commission finds that the agency argued the merits as
to why it issued the rating rather than providing evidence indicating
that complainant has used the EEO process "for a purpose other than the
prevention and elimination of employment discrimination." We therefore
find that the agency improperly dismissed complainant's complaint pursuant
to 29 C.F.R. § 1614.107(a)(9). We REVERSE the final agency decision
and remand the matter to the agency for further processing consistent
with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 11, 2008
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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4,921 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120080401.txt | 0120080401.txt | TXT | text/plain | 9,753 | Lolita Santos, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency. | September 21, 2007 | Appeal Number: 0120080401
Complaint Allegations:
In her complaint, complainant alleged that she was subjected to discrimination on the bases of race (Pacific Islander), national origin (Philippines), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when she learned that the Captain of the USNS Saturn did not want her to be assigned to his ship because she had filed EEO complaints against people on his ship. The agency dismissed the matter because complainant was eventually assigned to the Saturn. Regarding complainant's claim of reprisal, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Service, EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. In the instant case, complainant wanted to be assigned to the Saturn and there was a vacancy for which she qualified. However, the record contains documentary evidence, including emails, that suggest that the Captain indicated he did not want complainant on his ship because of her prior EEO complaints. Such comments include "do not under any circumstances send (complainant) to this ship as Chief Cook or in any other capacity" from the Captain and comments from the Detailer that he told complainant that it might not be a good idea to be assigned to the Saturn. However, it appears that complainant was persistent in her desire to be assigned to the Saturn, turned down offers to work on other ships, and was eventually assigned to the Saturn. Nonetheless, the Commission finds that the alleged actions/comments of the Captain and the Detailer appear, if true, to have been related to complainant's prior EEO activity and would be likely to deter EEO activity. As such, the Commission finds that complainant has stated a claim of reprisal. Complainant has shown an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Accordingly, the agency's final decision dismissing complainant's complaint is reversed. The complaint is hereby remanded to the agency for further processing in accordance with this decision and the Order below. ORDER (E0900)
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 21, 2007, dismissing her 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.
Legal Analysis:
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race (Pacific Islander), national origin
(Philippines), sex (female), and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when she learned that
the Captain of the USNS Saturn did not want her to be assigned to his
ship because she had filed EEO complaints against people on his ship. The
agency dismissed the matter because complainant was eventually assigned
to the Saturn.
Regarding complainant's claim of reprisal, the Commission has
stated that adverse actions need not qualify as "ultimate employment
actions" or materially affect the terms and conditions of employment
to constitute retaliation. Lindsey v. United States Postal Service,
EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual,
No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses
prohibit any adverse treatment that is based upon a retaliatory motive
and is reasonably likely to deter the charging party or others from
engaging in protected activity. Id. In the instant case, complainant
wanted to be assigned to the Saturn and there was a vacancy for which
she qualified. However, the record contains documentary evidence,
including emails, that suggest that the Captain indicated he did not
want complainant on his ship because of her prior EEO complaints. Such
comments include "do not under any circumstances send (complainant)
to this ship as Chief Cook or in any other capacity" from the Captain
and comments from the Detailer that he told complainant that it might
not be a good idea to be assigned to the Saturn. However, it appears
that complainant was persistent in her desire to be assigned to the
Saturn, turned down offers to work on other ships, and was eventually
assigned to the Saturn. Nonetheless, the Commission finds that the alleged
actions/comments of the Captain and the Detailer appear, if true, to have
been related to complainant's prior EEO activity and would be likely to
deter EEO activity. As such, the Commission finds that complainant has
stated a claim of reprisal.
Complainant has shown an injury or harm to a term, condition, or privilege
of employment for which there is a remedy. See Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994).
Final Decision:
Accordingly, the agency's final decision dismissing complainant's complaint is reversed. | Lolita Santos,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120080401
Agency No. 0762381020
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 21, 2007, dismissing her 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.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race (Pacific Islander), national origin
(Philippines), sex (female), and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when she learned that
the Captain of the USNS Saturn did not want her to be assigned to his
ship because she had filed EEO complaints against people on his ship. The
agency dismissed the matter because complainant was eventually assigned
to the Saturn.
Regarding complainant's claim of reprisal, the Commission has
stated that adverse actions need not qualify as "ultimate employment
actions" or materially affect the terms and conditions of employment
to constitute retaliation. Lindsey v. United States Postal Service,
EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual,
No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses
prohibit any adverse treatment that is based upon a retaliatory motive
and is reasonably likely to deter the charging party or others from
engaging in protected activity. Id. In the instant case, complainant
wanted to be assigned to the Saturn and there was a vacancy for which
she qualified. However, the record contains documentary evidence,
including emails, that suggest that the Captain indicated he did not
want complainant on his ship because of her prior EEO complaints. Such
comments include "do not under any circumstances send (complainant)
to this ship as Chief Cook or in any other capacity" from the Captain
and comments from the Detailer that he told complainant that it might
not be a good idea to be assigned to the Saturn. However, it appears
that complainant was persistent in her desire to be assigned to the
Saturn, turned down offers to work on other ships, and was eventually
assigned to the Saturn. Nonetheless, the Commission finds that the alleged
actions/comments of the Captain and the Detailer appear, if true, to have
been related to complainant's prior EEO activity and would be likely to
deter EEO activity. As such, the Commission finds that complainant has
stated a claim of reprisal.
Complainant has shown an injury or harm to a term, condition, or privilege
of employment for which there is a remedy. See Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). Accordingly, the
agency's final decision dismissing complainant's complaint is reversed.
The complaint is hereby remanded to the agency for further processing
in accordance with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded complaint in accordance with
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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 17, 2008
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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"29 C.F.R. § 1614.108",
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4,922 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120080341.txt | 0120080341.txt | TXT | text/plain | 10,134 | Pamela Atherstone, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | October 2, 2007 | Appeal Number: 0120080341
Case Facts:
Complainant filed an appeal with this Commission from the agency's
letter dated October 2, 2007, which closed her request for EEO
Counseling concerning unlawful employment discrimination in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. 1
Legal Analysis:
Upon review, the Commission finds
that complainant's complaint was improperly dismissed for "failure
to proceed."
The record discloses that complainant requested EEO Counseling on
September 12, 2007.2 The agency received her request, and forwarded to
her on September 12, 2007, an information packet entitled "Information for
Pre-complaint Counseling." Complainant was to use this form to provide the
basic information necessary for the agency to initiate the EEO process.
In the accompanying packet, complainant was informed that failure to
complete and return the forms within ten (10) calendar days from receipt
might result in the closing of her EEO contact for failure to proceed.
Complainant did not receive this packet until she returned from her
vacation on September 23, 2007. Complainant mailed the completed packet
back to the agency on September 28, 2007. On October 2, 2007, the agency
issued a letter closing complainant's request for counseling because
it had not received the requested documentation within the specified
10-day period.
On appeal, complainant contends that the delay was not significant.
She maintains the agency's leave records support the fact that she was
on vacation status during this period and as such, was unable to reply
within the agency's 10-day time period.
Based on a review of the record, the Commission finds that complainant
has presented a persuasive argument or evidence warranting an extension
of the time limit.
In addition, EEOC's regulation found at 29 C.F.R. § 1614.107(a)(7)
provides that prior to a request for a hearing in a case, the agency shall
dismiss an entire complaint where the agency has provided complainant
with a written request to provide relevant information or otherwise
proceed with the complaint, and complainant has failed to respond to the
request within 15 days of its receipt or complainant's response does not
address the agency's request, provided that the request included a notice
of the proposed dismissal. The regulation further provides mat, instead
of dismissing for failure to cooperate, the complaint may be adjudicated
if sufficient information for that purpose is available. Generally, the
Commission has held that an agency should not dismiss a complaint when it
has sufficient information upon which to base an adjudication. See Ross
v. United States Postal Service, EEOC. Request No. 05900693 (August 17,
1990); Brinson v. United States Postal Service, EEOC Request No. 05900193
(April 12, 1990). It is only in cases where the complainant has engaged
in delay or contumacious conduct and the record is insufficient to permit
adjudication that the Commission as allowed a complaint to be dismissed
for failure to cooperate. See Card v. United States Postal Service,
EEOC Request No. 05970095 (April 23, 1998); Kroeten v. United States
Postal Service, EEOC Request No. 05940451 (Dec. 22, 1994).
The Commission finds that complainant's failure to timely respond to the
requested information did not establish that complainant engaged in delay
or contumacious conduct sufficient to warrant dismissal of the complaint. | Pamela Atherstone,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080341
Agency No. Not Provided
DECISION
Complainant filed an appeal with this Commission from the agency's
letter dated October 2, 2007, which closed her request for EEO
Counseling concerning unlawful employment discrimination in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. 1 Upon review, the Commission finds
that complainant's complaint was improperly dismissed for "failure
to proceed."
The record discloses that complainant requested EEO Counseling on
September 12, 2007.2 The agency received her request, and forwarded to
her on September 12, 2007, an information packet entitled "Information for
Pre-complaint Counseling." Complainant was to use this form to provide the
basic information necessary for the agency to initiate the EEO process.
In the accompanying packet, complainant was informed that failure to
complete and return the forms within ten (10) calendar days from receipt
might result in the closing of her EEO contact for failure to proceed.
Complainant did not receive this packet until she returned from her
vacation on September 23, 2007. Complainant mailed the completed packet
back to the agency on September 28, 2007. On October 2, 2007, the agency
issued a letter closing complainant's request for counseling because
it had not received the requested documentation within the specified
10-day period.
On appeal, complainant contends that the delay was not significant.
She maintains the agency's leave records support the fact that she was
on vacation status during this period and as such, was unable to reply
within the agency's 10-day time period.
Based on a review of the record, the Commission finds that complainant
has presented a persuasive argument or evidence warranting an extension
of the time limit.
In addition, EEOC's regulation found at 29 C.F.R. § 1614.107(a)(7)
provides that prior to a request for a hearing in a case, the agency shall
dismiss an entire complaint where the agency has provided complainant
with a written request to provide relevant information or otherwise
proceed with the complaint, and complainant has failed to respond to the
request within 15 days of its receipt or complainant's response does not
address the agency's request, provided that the request included a notice
of the proposed dismissal. The regulation further provides mat, instead
of dismissing for failure to cooperate, the complaint may be adjudicated
if sufficient information for that purpose is available. Generally, the
Commission has held that an agency should not dismiss a complaint when it
has sufficient information upon which to base an adjudication. See Ross
v. United States Postal Service, EEOC. Request No. 05900693 (August 17,
1990); Brinson v. United States Postal Service, EEOC Request No. 05900193
(April 12, 1990). It is only in cases where the complainant has engaged
in delay or contumacious conduct and the record is insufficient to permit
adjudication that the Commission as allowed a complaint to be dismissed
for failure to cooperate. See Card v. United States Postal Service,
EEOC Request No. 05970095 (April 23, 1998); Kroeten v. United States
Postal Service, EEOC Request No. 05940451 (Dec. 22, 1994).
The Commission finds that complainant's failure to timely respond to the
requested information did not establish that complainant engaged in delay
or contumacious conduct sufficient to warrant dismissal of the complaint.
Accordingly, we find that the agency improperly dismissed the complaint
for failure to proceed. Therefore, we reverse the agency's dismissal
of complainant's counseling request and remand the case to the agency
for further processing.
ORDER
The agency is ordered to process complainant's request for counseling
pursuant to 29 C.F.R. § 1616.105 within forty-five (45) days. The agency
shall acknowledge to complainant that it has received the remanded
claim within fifteen (15) calendar days of the date this decision
becomes final.
A copy of the agency's letter of acknowledgment to complainant must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (R0408)
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 (Z1008)
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
05/22/09
__________________
Date
1 We exercise our discretion to treat this matter as a de-facto dismissal
of the complaint of discrimination.
2 Complainant contends that based on her disability and in reprisal
for prior EEO activity she was denied a reasonable accommodation.
??
??
??
??
| [
"Brinson v. United States Postal Service, EEOC Request No. 05900193 (April 12, 1990)",
"Card v. United States Postal Service, EEOC Request No. 05970095 (April 23, 1998)",
"Kroeten v. United States Postal Service, EEOC Request No. 05940451 (Dec. 22, 1994)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1616.105",
... | [
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0.005082369316369295,
-0.026... |
4,923 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120074019.txt | 0120074019.txt | TXT | text/plain | 9,853 | Ortiz, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency. | August 15, 2007 | Appeal Number: 0120074019
Case Facts:
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts complainant's
appeal from the agency's August 15, 2007 final decision concerning
her equal employment opportunity (EEO) complaint alleging 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.
Complainant sought EEO counseling and subsequently filed a formal
complaint on July 2, 2004, alleging that she was discriminated against on
the bases of age (D.O.B. 05/13/54) and reprisal for prior protected EEO
activity when she was not selected for the position of Loan Specialist,
GS-1165-9, under Vacancy Announcement Number PR-03-004. At the conclusion
of the investigation, complainant was provided with a copy of the report
of investigation and notice of right to request a hearing before an
EEOC Administrative Judge. However, complainant requested that the
agency issue a final decision. The agency requests that we affirm its
final decision.
In its decision, the agency found that complainant failed to establish a
prima facie case of reprisal discrimination, but did establish a prima
facie case of discrimination based on age. Specifically, regarding
complainant's reprisal claim, the agency found that the agency was not
aware of complainant's prior EEO activity prior to her non-selection
for the position at issue. In addition, the agency determined that
complainant was unable to establish a causal connection between her
protected activity and the non-selection. Concerning complainant's age
claim, the agency found that the selectee was outside complainant's
protected class. Therefore, the agency determined that complainant
had established a prima facie case of age discrimination as alleged.
However, assuming that complainant had established a prima facie case
of discrimination on all alleged bases, the agency determined that it
had articulated legitimate, non-discriminatory reasons for not selecting
complainant to fill the vacancy.
In the instant matter, complainant asserts that she was better qualified
to fill the position based on her seniority, her specialized experience
in loan servicing and her experience in processing loan applications.
She also indicates that she met the minimum qualifications for the
position and performed well during her interview. The record indicates
that a merit promotion panel was convened to evaluate the applications and
make a recommendation to the selecting official. The panel interviewed
the best qualified candidates including complainant and selected one to
fill the position.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
Assuming arguendo that complainant established a prima facie case of
discrimination as alleged, the Commission determines that the agency
articulated a legitimate, nondiscriminatory reason for the non-selection.
Specifically, complainant was not selected for the position because the
agency found that she had minimal knowledge of the mortgage industry and
that the selectee had better verbal communication skills. The agency
states that during the interview process, the answers of the selectee
were more direct and to the point, reflecting leadership and soundness
of thinking. In addition, the agency indicated that complainant's
experience was limited to the agency and that the selectee had a business
degree and loan underwriting experience. Complainant argues that her
qualifications were superior to that of the selectee and that she was
better suited for the position. However, the record fails to support
complainant's contentions.
Legal Analysis:
the Commission accepts complainant's
appeal from the agency's August 15, 2007 final decision concerning
her equal employment opportunity (EEO) complaint alleging 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.
Complainant sought EEO counseling and subsequently filed a formal
complaint on July 2, 2004, alleging that she was discriminated against on
the bases of age (D.O.B. 05/13/54) and reprisal for prior protected EEO
activity when she was not selected for the position of Loan Specialist,
GS-1165-9, under Vacancy Announcement Number PR-03-004. At the | Medelicia Velazquez-Ortiz,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120074019
Agency No. RD200401338
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts complainant's
appeal from the agency's August 15, 2007 final decision concerning
her equal employment opportunity (EEO) complaint alleging 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.
Complainant sought EEO counseling and subsequently filed a formal
complaint on July 2, 2004, alleging that she was discriminated against on
the bases of age (D.O.B. 05/13/54) and reprisal for prior protected EEO
activity when she was not selected for the position of Loan Specialist,
GS-1165-9, under Vacancy Announcement Number PR-03-004. At the conclusion
of the investigation, complainant was provided with a copy of the report
of investigation and notice of right to request a hearing before an
EEOC Administrative Judge. However, complainant requested that the
agency issue a final decision. The agency requests that we affirm its
final decision.
In its decision, the agency found that complainant failed to establish a
prima facie case of reprisal discrimination, but did establish a prima
facie case of discrimination based on age. Specifically, regarding
complainant's reprisal claim, the agency found that the agency was not
aware of complainant's prior EEO activity prior to her non-selection
for the position at issue. In addition, the agency determined that
complainant was unable to establish a causal connection between her
protected activity and the non-selection. Concerning complainant's age
claim, the agency found that the selectee was outside complainant's
protected class. Therefore, the agency determined that complainant
had established a prima facie case of age discrimination as alleged.
However, assuming that complainant had established a prima facie case
of discrimination on all alleged bases, the agency determined that it
had articulated legitimate, non-discriminatory reasons for not selecting
complainant to fill the vacancy.
In the instant matter, complainant asserts that she was better qualified
to fill the position based on her seniority, her specialized experience
in loan servicing and her experience in processing loan applications.
She also indicates that she met the minimum qualifications for the
position and performed well during her interview. The record indicates
that a merit promotion panel was convened to evaluate the applications and
make a recommendation to the selecting official. The panel interviewed
the best qualified candidates including complainant and selected one to
fill the position.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
Assuming arguendo that complainant established a prima facie case of
discrimination as alleged, the Commission determines that the agency
articulated a legitimate, nondiscriminatory reason for the non-selection.
Specifically, complainant was not selected for the position because the
agency found that she had minimal knowledge of the mortgage industry and
that the selectee had better verbal communication skills. The agency
states that during the interview process, the answers of the selectee
were more direct and to the point, reflecting leadership and soundness
of thinking. In addition, the agency indicated that complainant's
experience was limited to the agency and that the selectee had a business
degree and loan underwriting experience. Complainant argues that her
qualifications were superior to that of the selectee and that she was
better suited for the position. However, the record fails to support
complainant's contentions.
Upon review, the Commission finds that complainant failed to present
evidence that more likely than not, the agency's articulated reasons
for its action were a pretext for discrimination. Complainant
failed to provide sufficient evidence of pretext or that she has
superior qualifications. Moreover, the Commission finds that the
complainant failed to demonstrate that her non-selection was based on
any discriminatory animus toward complainant's age or in reprisal for
her prior EEO activity.
Therefore, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to affirm the agency's
final decision because the preponderance of the evidence of record does
not establish that discrimination occurred.
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
January 28, 2008
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
| [
"Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997)",
"Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995)",
"411 U.S. 792",
"438 U.S. 567",
"460 U.S. 711",
"530 U.S. 133",
"120 S.Ct. 2097",
"509 U.S. 502",
"450 U.S. 248",
"29 C.F.R... | [
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4,924 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120073984.txt | 0120073984.txt | TXT | text/plain | 10,538 | 4007 Leah A. Lapka, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (U.S. Citizenship and Immigration Services), Agency. | September 19, 2007 | Appeal Number: 0120073984
Legal Analysis:
the Commission AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as a District Adjudication Officer at U.S. Citizenship and Immigration
Services, District Office, Chicago, Illinois. On March 29, 2006,
complainant filed an EEO complaint alleging that she was discriminated
against on the basis of reprisal for prior protected EEO activity [under
Title VII] when:
(1) Complainant's within-grade increase from GS-12, Step 1 to GS-12,
Step 2 was
delayed; and
(2) Complainant's supervisor rated her overall performance for the
rating period April 1, 2004 to March 31, 2005, as "Fully Successful."
At the | Reference #: 0120073984
Robert D. Whitfield, Esq.
651 W Washington Blvd #205
Chicago, IL 60661
Reference #: 0120073984
ATTN: Carmen H. Walker / MS0800
Department of Homeland Security
245 Murray Ln., SW Bldg. 410
Washington, DC 20528
Reference #: 0120073984
Leah A. Lapka
P.O.B. 704
Chicago, IL 60690
Reference #: 0120073984
Judy Maltby, Chief
EEO Complaints Program Management Office
Department of Homeland Security
Bishop Henry Whipple Federal Building
One Federal Drive, Room G-56C
Twin Cities, MN 55111-4007
Leah A. Lapka,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(U.S. Citizenship and Immigration Services),
Agency.
Appeal No. 0120073984
Hearing No. 440-2007-00050X
Agency No. HS06CIS000542
DECISION
On September 19, 2007, complainant filed an appeal from the agency's
August 20, 2007 final order concerning her equal employment opportunity
(EEO) complaint alleging 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. The appeal is deemed timely and is accepted for de novo
review, pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as a District Adjudication Officer at U.S. Citizenship and Immigration
Services, District Office, Chicago, Illinois. On March 29, 2006,
complainant filed an EEO complaint alleging that she was discriminated
against on the basis of reprisal for prior protected EEO activity [under
Title VII] when:
(1) Complainant's within-grade increase from GS-12, Step 1 to GS-12,
Step 2 was
delayed; and
(2) Complainant's supervisor rated her overall performance for the
rating period April 1, 2004 to March 31, 2005, as "Fully Successful."
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over complainant's objections, the AJ assigned to
the case granted the agency's motion for a decision without a hearing
and issued a decision without a hearing on July 17, 2007.
The AJ found that complainant was not subjected to any adverse treatment
as to either issue. Specifically, as to (1), complainant's step increase
was delayed, as it ought to have been, by a few pay periods because of
complainant's non-pay status during the year she was at Step 1. She was
not entitled to a step increase any sooner than when it was issued. As to
(2), the appraisal was unofficial, never signed by complainant, and in no
way harmed her advancement opportunities or adversely affected her chance
of obtaining employment benefits or awards.1 Further, the undisputed
testimony of record indicates that when a final rating was issued in March
2006 (the only rating in the record for the rating period in question),
complainant received the highest possible rating of "Outstanding."
The AJ found no evidence of discrimination. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that she was subjected to discrimination as alleged.
On appeal, complainant recites her version of the facts, and points out
that her performance appraisal rating was only changed after management
learned that she had initiated EEO activity. Complainant also contends
that the evidence shows that the rating in question was not merely
"preliminary" and was "treated as final" by management. Specifically, she
notes that it was signed by management, and forwarded to Human Resources.
Complainant requests a hearing before an Administrative Judge.
The agency, in response, asserts that complainant did not specifically
object to the finding of no discrimination as to issue (1), and therefore,
the agency limits its argument to issue (2). The agency contends that the
AJ correctly found that complainant suffered no adverse action as to issue
(2) as the undisputed evidence of record shows that the appraisal was
not final and was never officially issued to, or signed by, complainant.
The agency additionally asserts that assuming complainant did suffer
an adverse action, the agency articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the rating official stated that
complainant was rated "Fully Satisfactory" at the time the unofficial
appraisal was prepared based upon her understanding that complainant
had primarily worked only on her own backlog. However, upon further
investigation of complainant's work during the rating period, she found
that complainant was doing additional duties and therefore, she raised
the rating in the official appraisal. The agency contends that the
record contains no persuasive evidence of pretext. The agency asks the
Commission to affirm the final order.
Initially, we agree that complainant has not show that she suffered
an adverse action as to either issue (1) or (2). We do find however,
that both incidents ought to be analyzed jointly within a hostile
work environment harassment framework. In order for harassment to
be considered as conduct in violation of the laws that the Commission
enforces, it must be pervasive or severe enough to significantly and
adversely alter the conditions of the victim's employment and create
an abusive working environment. Harris v. Forklift Systems, Inc., 510
U.S. 17 (1993). The conduct in question is evaluated from the standpoint
of a reasonable person, taking into account the particular context in
which it occurred. Highlander v. K.F.C. National Management Co., 805
F.2d 644 (6th Cir. 1986). The Commission notes that unless the conduct
is very severe, a single incident or group of isolated incidents will
not be regarded as discriminatory harassment. Walker v. Ford Motor Co.,
684 F.2d 1355, 1358 (11th Cir. 1982). Here, the alleged harassment was
neither severe nor pervasive enough to be considered unlawful.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute.2 See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
March 31, 2009
__________________
Date
1 Complainant herself states that she was not even aware of the appraisal
until she found it in a mail crate on December 22, 2005.
2 In this case, we find that the record was adequately developed for
the AJ to issue a decision without a hearing.
??
??
??
??
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4,925 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120073751.txt | 0120073751.txt | TXT | text/plain | 9,798 | Bruce S. Russo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | July 24, 2007 | Appeal Number: 0120073751
Complaint Allegations:
In his complaint, complainant alleged that he was subjected to discrimination on the bases of age (D.O.B. 12/15/53) and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 when he was issued a notice of removal on October 27, 2006 and on March 15, 2007, he received a form 50 stating he had been removed.
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 24, 2007, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
Legal Analysis:
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107. In his complaint,
complainant alleged that he was subjected to discrimination on the
bases of age (D.O.B. 12/15/53) and reprisal for prior protected EEO
activity under the Age Discrimination in Employment Act of 1967 when
he was issued a notice of removal on October 27, 2006 and on March 15,
2007, he received a form 50 stating he had been removed.
The agency dismissed the matter on two grounds - that the claim was
identical to case no 1A-118-0006-07 (6-07), and for untimely EEO
counselor contact.
In 6-07, complainant did raise his removal. The matter went to settlement
and the settlement basically stated that "A schedule examiner will
accompany a driver on (complainant's) job #615 trip #6079/6080 (Wading
River) within the next 30 days." The settlement did not say that
complainant would be removed, nor whether he was reinstated. Nor was there
any benefit given to complainant in the settlement agreement. Complainant
explains that at that time, the matter was going through the grievance
process and he thought his removal was held in abeyance. He states that
after he signed the settlement agreement he was suddenly told that he
was being removed. In March 2007, he received a form 50 stating he
had been removed. Further, in his appeal, complainant states that he
later received another form 50 rescinding the March form 50. Thus, from
the record before us, we are unable to determine the effective date of
complainant's removal.
Given that the settlement agreement is not clear as to whether complainant
was removed or whether he was to be reinstated, and because there is
nothing to show that complainant received any consideration for the
settlement agreement, the Commission is reluctant to dismiss the instant
complaint. The Commission notes that under 29 C.F.R. § 1614.105(a), an
employee must contact an EEO counselor within 45 days of the effective
days of a personnel action. In the instant case, complainant has indicated
that the form 50 was rescinded. It appears that complainant contacted
an EEO counselor within 45 days of receiving official notice (the
form 50) that his removal was going to take effect. As such, his EEO
counselor contact was timely. To the extent that the agency is relying
upon the previous SA, the Commission finds that because it is silent
as to whether complainant was removed or reinstated and because of the
lack of consideration, the issue of complainant's removal has not
been addressed. As such the instant complaint should be processed. | Bruce S. Russo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073751
Agency No. 1A118001507
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 24, 2007, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107. In his complaint,
complainant alleged that he was subjected to discrimination on the
bases of age (D.O.B. 12/15/53) and reprisal for prior protected EEO
activity under the Age Discrimination in Employment Act of 1967 when
he was issued a notice of removal on October 27, 2006 and on March 15,
2007, he received a form 50 stating he had been removed.
The agency dismissed the matter on two grounds - that the claim was
identical to case no 1A-118-0006-07 (6-07), and for untimely EEO
counselor contact.
In 6-07, complainant did raise his removal. The matter went to settlement
and the settlement basically stated that "A schedule examiner will
accompany a driver on (complainant's) job #615 trip #6079/6080 (Wading
River) within the next 30 days." The settlement did not say that
complainant would be removed, nor whether he was reinstated. Nor was there
any benefit given to complainant in the settlement agreement. Complainant
explains that at that time, the matter was going through the grievance
process and he thought his removal was held in abeyance. He states that
after he signed the settlement agreement he was suddenly told that he
was being removed. In March 2007, he received a form 50 stating he
had been removed. Further, in his appeal, complainant states that he
later received another form 50 rescinding the March form 50. Thus, from
the record before us, we are unable to determine the effective date of
complainant's removal.
Given that the settlement agreement is not clear as to whether complainant
was removed or whether he was to be reinstated, and because there is
nothing to show that complainant received any consideration for the
settlement agreement, the Commission is reluctant to dismiss the instant
complaint. The Commission notes that under 29 C.F.R. § 1614.105(a), an
employee must contact an EEO counselor within 45 days of the effective
days of a personnel action. In the instant case, complainant has indicated
that the form 50 was rescinded. It appears that complainant contacted
an EEO counselor within 45 days of receiving official notice (the
form 50) that his removal was going to take effect. As such, his EEO
counselor contact was timely. To the extent that the agency is relying
upon the previous SA, the Commission finds that because it is silent
as to whether complainant was removed or reinstated and because of the
lack of consideration, the issue of complainant's removal has not
been addressed. As such the instant complaint should be processed.
Accordingly, the agency's final decision dismissing complainant's
complaint is reversed and the matter is remanded as set forth below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 2, 2007
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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4,926 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120073676.txt | 0120073676.txt | TXT | text/plain | 9,377 | Victor Rodriguez, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency. | July 19, 2007 | Appeal Number: 0120073676
Complaint Allegations:
In his complaint, complainant alleged that he was subjected to discrimination on the bases of national origin (Hispanic) and age (D.O.B. 06/04/59) when he was denied light duty.
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 19, 2007, 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.
Legal Analysis:
Upon review, the Commission finds that complainant's
complaint was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2),
for untimely EEO Counselor contact. In his complaint, complainant alleged
that he was subjected to discrimination on the bases of national origin
(Hispanic) and age (D.O.B. 06/04/59) when he was denied light duty.
The agency argues that the alleged discriminatory event occurred on
December 28, 2005, but complainant did not initiate contact with an EEO
Counselor until May 10, 2006, which is beyond the forty-five (45) day
limitation period. On appeal, complainant explained that his requests for
light duty were ongoing, that he keeps being denied light duty, and that
is why he gave the agency an April 1, 2006 date in his formal complaint
which would make his complaint timely. He explains that on December 28,
2005 he was sent home from light duty. Further he explains that the
EEO poster on the office board did not have the correct information or
telephone number for contacting an EEO counselor because the agency was
in the process of transitioning from Immigrations and Customs Enforcement
to Transportation Security Administration. As a result he wrote a letter
to the Commission's Miami District Office seeking information. Where,
as here, there is an issue of timeliness, "[a]n agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness." Guy, v. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994) (quoting Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition,
in Ericson v. Department of the Army, EEOC Request No. 05920623 (January
14, 1993), the Commission stated that "the agency has the burden of
providing evidence and/or proof to support its final decisions."
See also Gens v. Department of Defense, EEOC Request No. 05910837
(January 31, 1992). In the instant case, because the agency did not
include a copy of the poster, the Commission finds that complainant has
provided sufficient argument and evidence to show he timely contacted
the EEO counselor. | Victor Rodriguez,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120073676
Agency No. HS06TSA001663
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 19, 2007, 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. Upon review, the Commission finds that complainant's
complaint was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2),
for untimely EEO Counselor contact. In his complaint, complainant alleged
that he was subjected to discrimination on the bases of national origin
(Hispanic) and age (D.O.B. 06/04/59) when he was denied light duty.
The agency argues that the alleged discriminatory event occurred on
December 28, 2005, but complainant did not initiate contact with an EEO
Counselor until May 10, 2006, which is beyond the forty-five (45) day
limitation period. On appeal, complainant explained that his requests for
light duty were ongoing, that he keeps being denied light duty, and that
is why he gave the agency an April 1, 2006 date in his formal complaint
which would make his complaint timely. He explains that on December 28,
2005 he was sent home from light duty. Further he explains that the
EEO poster on the office board did not have the correct information or
telephone number for contacting an EEO counselor because the agency was
in the process of transitioning from Immigrations and Customs Enforcement
to Transportation Security Administration. As a result he wrote a letter
to the Commission's Miami District Office seeking information. Where,
as here, there is an issue of timeliness, "[a]n agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness." Guy, v. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994) (quoting Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition,
in Ericson v. Department of the Army, EEOC Request No. 05920623 (January
14, 1993), the Commission stated that "the agency has the burden of
providing evidence and/or proof to support its final decisions."
See also Gens v. Department of Defense, EEOC Request No. 05910837
(January 31, 1992). In the instant case, because the agency did not
include a copy of the poster, the Commission finds that complainant has
provided sufficient argument and evidence to show he timely contacted
the EEO counselor. Accordingly, the agency's final decision dismissing
complainant's complaint is reversed and the matter is remanded as set
forth below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 25, 2007
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
| [
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"Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993)",
"Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.108",
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4,927 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120073672.txt | 0120073672.txt | TXT | text/plain | 9,351 | Marcia E. Coldwells, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency. | July 10, 2007 | Appeal Number: 0120073672
Complaint Allegations:
In her complaint, complainant alleged that she was subjected to discrimination on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On March 2 and March 9, 2007, she was given a Notice of Management Change in Employment category which changed her employment status from full time to part time; 2. On February 2, she was given a counseling statement for tardiness and was required to email her supervisor within 10 minutes of her arrival at work; 3. In February 2007 her personal journal was taken from her office and copies were made; 4. In January 2007 her supervisor was informed that she was reporting to work late on an almost daily basis. Regarding claim 1, the record indicates that the March 2, 2007 letter stated that the effective date for the action would be April 14, 2007. That date was extended to June 21, 2007, in the March 9, 2007 letter. 29 C.F.R. § 1614.105(a)(1) states that an aggrieved person must contact an EEO counselor within 45 days of the effective date of the personnel action - in this case effective date her position was changed from full to part-time, or June 21, 2007. Complainant contacted the counselor within 45 days of the effective date. As such, the agency's dismissal of this claim is reversed.
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 10, 2007, dismissing her 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.
Legal Analysis:
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely
EEO Counselor contact. In her complaint, complainant alleged that she was
subjected to discrimination on the basis of reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On March 2 and March 9, 2007, she was given a Notice of Management
Change in Employment category which changed her employment status from
full time to part time;
2. On February 2, she was given a counseling statement for tardiness and
was required to email her supervisor within 10 minutes of her arrival
at work;
3. In February 2007 her personal journal was taken from her office and
copies were made;
4. In January 2007 her supervisor was informed that she was reporting
to work late on an almost daily basis.
Regarding claim 1, the record indicates that the March 2, 2007 letter
stated that the effective date for the action would be April 14,
2007. That date was extended to June 21, 2007, in the March 9, 2007
letter. 29 C.F.R. § 1614.105(a)(1) states that an aggrieved person must
contact an EEO counselor within 45 days of the effective date of the
personnel action - in this case effective date her position was changed
from full to part-time, or June 21, 2007. Complainant contacted the
counselor within 45 days of the effective date. As such, the agency's
dismissal of this claim is reversed.
The record discloses that with respect to claims 2-4, the last alleged
discriminatory event occurred on February 8, 2007, but complainant did
not initiate contact with an EEO Counselor until May 3, 2007, which is
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.
Final Decision:
Accordingly, the agency's final decision dismissing those claims is affirmed. | Marcia E. Coldwells,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120073672
Agency No. AREUHEID07MAY01622
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 10, 2007, dismissing her 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely
EEO Counselor contact. In her complaint, complainant alleged that she was
subjected to discrimination on the basis of reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On March 2 and March 9, 2007, she was given a Notice of Management
Change in Employment category which changed her employment status from
full time to part time;
2. On February 2, she was given a counseling statement for tardiness and
was required to email her supervisor within 10 minutes of her arrival
at work;
3. In February 2007 her personal journal was taken from her office and
copies were made;
4. In January 2007 her supervisor was informed that she was reporting
to work late on an almost daily basis.
Regarding claim 1, the record indicates that the March 2, 2007 letter
stated that the effective date for the action would be April 14,
2007. That date was extended to June 21, 2007, in the March 9, 2007
letter. 29 C.F.R. § 1614.105(a)(1) states that an aggrieved person must
contact an EEO counselor within 45 days of the effective date of the
personnel action - in this case effective date her position was changed
from full to part-time, or June 21, 2007. Complainant contacted the
counselor within 45 days of the effective date. As such, the agency's
dismissal of this claim is reversed.
The record discloses that with respect to claims 2-4, the last alleged
discriminatory event occurred on February 8, 2007, but complainant did
not initiate contact with an EEO Counselor until May 3, 2007, which is
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 final decision dismissing those claims is affirmed.
The agency's decision dismissing claim 1 is reversed. The agency's
decision dismissing claims 2-4 is affirmed. Claim 1 is remanded for
further processing as set forth below.
ORDER (E0900)
The agency is ordered to process the remanded claim 1 in accordance with
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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (Q0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 25, 2007
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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4,928 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120073343.txt | 0120073343.txt | TXT | text/plain | 9,459 | Steven V. Harvey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | July 21, 2007 | Appeal Number: 0120073343
Legal Analysis:
the Commission AFFIRMS
the agency's final decision.
At the time of events giving rise to this complaint, complainant worked
as a Electrical Technician at the agency's Daytona Beach Processing and
Distribution Facility facility in Daytona Beach, Florida. On December 18,
2006, complainant filed an EEO complaint alleging that he was subjected
to unlawful harassment based on his age (D.O.B. 09/28/54) when: (1) on
October 4, 2006, he was issued a Letter of Warning (LOW) for failing to
follow instructions of his supervisor during an incident that occurred on
September 28, 2006. Complainant further alleged that he was subjected
to harassment based on retaliation when: (2) on November 27, 2006, his
sick leave request for September 29, and October 1, 2006 was changed to
Absence Without Leave (AWOL); and (3) he was issued a collection letter
for the sick leave he took on those days.
At the | Steven V. Harvey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073343
Agency No. 1H321000107
DECISION
On July 21, 2007, complainant filed an appeal from the agency's June 27,
2007, final decision concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §
621 et seq. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS
the agency's final decision.
At the time of events giving rise to this complaint, complainant worked
as a Electrical Technician at the agency's Daytona Beach Processing and
Distribution Facility facility in Daytona Beach, Florida. On December 18,
2006, complainant filed an EEO complaint alleging that he was subjected
to unlawful harassment based on his age (D.O.B. 09/28/54) when: (1) on
October 4, 2006, he was issued a Letter of Warning (LOW) for failing to
follow instructions of his supervisor during an incident that occurred on
September 28, 2006. Complainant further alleged that he was subjected
to harassment based on retaliation when: (2) on November 27, 2006, his
sick leave request for September 29, and October 1, 2006 was changed to
Absence Without Leave (AWOL); and (3) he was issued a collection letter
for the sick leave he took on those days.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. §
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. §
1614.110(b) concluding that complainant failed to prove that he was
subjected to discrimination or a hostile work environment as alleged.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999). Preliminarily,
we note that the agency erred when it framed complainant's claim as one
comprised of a hostile work environment when he was issued the LOW on
October 4, 2006. Rather, the record reflects that complainant alleged in
his complaint of discrimination that he was subjected to a hostile work
environment when his supervisor (S1) denied his request for assistance and
"screamed at [him]" to go back to work. Complainant felt threatened and
left the building. Therefore, we frame claim (1) as whether complainant
was subjected to harassment based on his age when on September 28, 2006,
S1 denied him the assistance he requested, screamed at him to go to work
and subsequently, on October 4, 2006 issued complainant an LOW.
We find, however, that complainant failed to establish that he was
subjected to a hostile work environment as he alleges with regard to
claims (1), (2) or (3). In order to establish a claim of harassment based
on age or retaliation complainant must show membership in a protected
group, and severe or pervasive harassing conduct, such that it alters
the conditions of her employment, that would not have occurred except
for his membership in that protected group. Harris v. Forklift Systems,
Inc., 510 U.S. 17, 23 (1993) Henderson v. City of Dundee, 682 F.2d 897,
903-4 ( 11th Cir. 1982).
We find that complainant failed to show that the incidents in claim (1),
(2) or (3), occurred due to his age or prior EEO activity. The record
reflects that complainant failed to put forth sufficient evidence to
corroborate his assertions that the agency took the actions that it did
as a result of his age or prior EEO activity. Specifically, complainant
failed to offer any evidence to substantiate his assertions that S1
treated him poorly with regard to claim (1) due to his age. Complainant
merely states that S1 favors a younger employee. We find that this alone
is insufficient to establish that, assuming S1 screamed at complainant,
it was due to unlawful animus toward his age. With regard to the LOW,
complainant admits that he left the premises after S1 screamed at him.
Although he stated that he left because he felt threatened and wished
to separate himself from S1, the record reflects that he did not have
permission to leave the premises. As such, complainant failed to show
that he was issued the LOW due to his age. With regard to claims (2)
and (3), the record reflects that the agency requested documentation
to substantiate complainant's request for sick leave. Complainant's
failure to provide the documentation resulted in his being placed on AWOL
status and eventually required that he pay back for the sick pay he was
originally given. We find no persuasive evidence that indicates that
the agency acted with retaliatory animus when it requested documentation
from complainant and took the subsequent actions when he failed to
provide the documentation. Even taking all the incidents together,
we find that complainant failed to establish that he was subjected to
unlawful harassment due to his age or prior EEO activity. Further, we
note that nothing in the record supports an inference of discriminatory
or retaliatory animus. Therefore, based on a thorough review of the
record, we affirm the agency's FAD finding that complainant failed to
establish that he was subjected to unlawful harassment as he alleged.
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
___9/26/07_______________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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4,929 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120071264.txt | 0120071264.txt | TXT | text/plain | 10,993 | Cornelius Moore, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. | January 5, 2007 | Appeal Number: 0120071264
Background:
At the time of events giving rise to this complaint, complainant worked
as a Transportation Security Screener at the agency's Lambert- St. Louis
International Airport facility in Saint Ann, Missouri. On July 30, 2004,
complainant filed an EEO complaint alleging that he was discriminated
against on the bases of his race (African American) and color (black)
when:
1. on April 15, 2004, management did not select him for the position
of Lead Transportation Security Screener (LTSS);
2. on October 18, 2004, management did not select him for the
position of Supervisory Transportation Security Screener (STSS); and
3. on October 22, 2004, management did not select him for the
position of LTSS.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that complainant failed
to prove that he was subjected to discrimination as alleged. On appeal,
complainant reiterates his contention that he was subjected to unlawful
race and color discrimination. Complainant also contends that the agency
"impermissibly used information from a mediation session in evaluating
[the instant claims]." (Complainant's Brief on Appeal, 1).
Legal Analysis:
the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Transportation Security Screener at the agency's Lambert- St. Louis
International Airport facility in Saint Ann, Missouri. On July 30, 2004,
complainant filed an EEO complaint alleging that he was discriminated
against on the bases of his race (African American) and color (black)
when:
1. on April 15, 2004, management did not select him for the position
of Lead Transportation Security Screener (LTSS);
2. on October 18, 2004, management did not select him for the
position of Supervisory Transportation Security Screener (STSS); and
3. on October 22, 2004, management did not select him for the
position of LTSS.
At the | Cornelius Moore,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120071264
Agency No. HS060041
DECISION
On January 5, 2007, complainant filed an appeal from the agency's December
4, 2006 final agency decision (FAD) concerning his equal employment
opportunity (EEO) complaint alleging 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. The appeal is accepted pursuant
to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Transportation Security Screener at the agency's Lambert- St. Louis
International Airport facility in Saint Ann, Missouri. On July 30, 2004,
complainant filed an EEO complaint alleging that he was discriminated
against on the bases of his race (African American) and color (black)
when:
1. on April 15, 2004, management did not select him for the position
of Lead Transportation Security Screener (LTSS);
2. on October 18, 2004, management did not select him for the
position of Supervisory Transportation Security Screener (STSS); and
3. on October 22, 2004, management did not select him for the
position of LTSS.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that complainant failed
to prove that he was subjected to discrimination as alleged. On appeal,
complainant reiterates his contention that he was subjected to unlawful
race and color discrimination. Complainant also contends that the agency
"impermissibly used information from a mediation session in evaluating
[the instant claims]." (Complainant's Brief on Appeal, 1).
ANALYSIS AND FINDINGS
Initially, we find that a number of management officials made improper
reference in their affidavit testimony to statements allegedly
made by complainant in the course of mediation. Indeed, the agency
improperly referred to those same statements in its FAD. We note that
confidentiality is considered one of the "Core Principles" of Alternative
Dispute Resolution (ADR). "Parties who know that their ADR statements
and information are kept confidential will feel free to be frank and
forthcoming during the proceeding, without fear that such information
may later be used against them." See Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614. (EEO MD-110), 3-16, 3-17
and Appendix H (Nov. 9, 1999). Further, EEO MD-110, 3-14 discusses an
agency's obligation to provide training to managers and supervisors in
the principles of ADR. Clearly, through this case, it is clear that
further training is needed as agency managers and even the agency EEO
office improperly allowed the improper references to statements made
during mediation. Because confidentiality is essential to the success
of all ADR proceedings, the Commission will not consider any statements
made during mediation in this decision.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Here, we find that assuming, arguendo, complainant established a prima
facie case of race and color discrimination, the agency nonetheless
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, complainant was not among the best qualified applicants
for any of the positions at issue. The record reflects that, with
respect to the LTSS position, complainant was one of approximately 250
applicants for 17 available positions. (Report of Investigation, F-5).
The Screening Manager (SM) stated that the criteria for the LTSS
position included "recommendations from their current Supervisor,
work habits, attendance records, disciplinary records, [and] overall
work attitude." (R.O.I., F-2). With respect to the STSS position, the
record shows that complainant was one of 42 applicants referred to the
selecting official, but that he was not among the 15 selectees. The SM
stated that complainant was not selected for the any of the advertised
positions because "he showed very little leadership skill as a screener
[and he] was not highly recommended by his supervisors based on his
average work habits." (R.O.I., F-2). Finally, as to the October 22,
2004 nonselection, the record shows that complainant was not eligible for
the LTSS position at issue because it was a non-competitive selection
and complainant did not meet the criteria. Specifically, complainant
was not in the correct pay band to be considered for a non-competitive
selection to the LTSS position. (R.O.I., F-8; F-10).
We find that complainant has proffered no evidence to show that any of
the agency's actions were motivated by discriminatory or retaliatory
animus. We further find that complainant has not shown that the agency's
articulated reasons for his nonselections were pretextual. Accordingly,
we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
April 1, 2009
Date
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4,930 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120070712.txt | 0120070712.txt | TXT | text/plain | 10,358 | Mark R. Malouse, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency. | November 14, 2006 | Appeal Number: 0120070712
Background:
At the time of events giving rise to this complaint, complainant worked
as a Pharmacist at the agency's Branch Medical Clinic in Gulfport,
Mississippi. On July 8, 2004, complainant filed an EEO complaint alleging
that he was discriminated against in reprisal for prior protected EEO
activity when:
1. management denied him civilian physical training (PT) time,
temporary additional duty (TAD) assignments, and annual leave until he
completed the pharmacy Standard Operating Procedure (SOP);
2. management denied him permission to close the pharmacy for lunch
breaks, civilian PT time, and special events;
3. on June 8, 2004, management advised him that an incoming military
pharmacy technician would not be assigned to the pharmacy full-time;
4. on October 7, 2004, complainant's supervisor (S1) rescinded her
approval of complainant's 30-minute annual leave request and directed
him to stay after his duty hours to issue a prescription;
5. from October 13-15, 2004, S1 denied complainant's requests for
30 minutes of annual leave on three separate occasions;
6. during the week of November 1, 2004, S1 denied complainant's
request for annual leave; and
7. on October 29, 2004, S1 issued complainant a Letter of Reprimand
(LOR) for refusing to follow instructions.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on June 14 and July 26,
2006. The AJ subsequently issued a decision finding no discrimination.
The AJ found that assuming, arguendo, complainant established a prima
facie case of reprisal discrimination, the agency nonetheless articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the AJ found that complainant was denied PT time and TAD because of his
failure to complete the SOP, despite being given ample time to do so,
and that once complainant completed the SOP, he was once again granted
PT time and TAD assignments. The AJ further found that complainant was
denied annual leave during major mobilizations and demobilizations,
which was the policy of complainant's facility. The AJ found that
agency policy also required the pharmacy to remain open during lunch,
and could not close until the last patient was served. The AJ found
that the military pharmacy technician was assigned to duties outside
the pharmacy prior to complainant's protected EEO activity. Finally,
the AJ found the issuance of the LOR was in line with agency policies
and procedures. The AJ concluded that complainant failed to show that
any of the agency's articulated reasons for its actions were a pretext
for unlawful retaliation.
The agency's final order adopted the AJ's finding that complainant failed
to prove that he was subjected to discrimination as alleged. On appeal,
complainant reiterates his contention that the agency's actions were
motivated by reprisal for his prior protected EEO activity.
Final Decision:
Accordingly, we discern no basis to disturb the AJ's decision, and the agency's final order is affirmed. | Mark R. Malouse,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120070712
Hearing No. 130-2005-00254X
Agency No. 043937510481
DECISION
On November 14, 2006, complainant filed an appeal from the agency's
October 10, 2006 final order concerning his equal employment opportunity
(EEO) complaint alleging 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. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission affirms the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Pharmacist at the agency's Branch Medical Clinic in Gulfport,
Mississippi. On July 8, 2004, complainant filed an EEO complaint alleging
that he was discriminated against in reprisal for prior protected EEO
activity when:
1. management denied him civilian physical training (PT) time,
temporary additional duty (TAD) assignments, and annual leave until he
completed the pharmacy Standard Operating Procedure (SOP);
2. management denied him permission to close the pharmacy for lunch
breaks, civilian PT time, and special events;
3. on June 8, 2004, management advised him that an incoming military
pharmacy technician would not be assigned to the pharmacy full-time;
4. on October 7, 2004, complainant's supervisor (S1) rescinded her
approval of complainant's 30-minute annual leave request and directed
him to stay after his duty hours to issue a prescription;
5. from October 13-15, 2004, S1 denied complainant's requests for
30 minutes of annual leave on three separate occasions;
6. during the week of November 1, 2004, S1 denied complainant's
request for annual leave; and
7. on October 29, 2004, S1 issued complainant a Letter of Reprimand
(LOR) for refusing to follow instructions.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on June 14 and July 26,
2006. The AJ subsequently issued a decision finding no discrimination.
The AJ found that assuming, arguendo, complainant established a prima
facie case of reprisal discrimination, the agency nonetheless articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the AJ found that complainant was denied PT time and TAD because of his
failure to complete the SOP, despite being given ample time to do so,
and that once complainant completed the SOP, he was once again granted
PT time and TAD assignments. The AJ further found that complainant was
denied annual leave during major mobilizations and demobilizations,
which was the policy of complainant's facility. The AJ found that
agency policy also required the pharmacy to remain open during lunch,
and could not close until the last patient was served. The AJ found
that the military pharmacy technician was assigned to duties outside
the pharmacy prior to complainant's protected EEO activity. Finally,
the AJ found the issuance of the LOR was in line with agency policies
and procedures. The AJ concluded that complainant failed to show that
any of the agency's articulated reasons for its actions were a pretext
for unlawful retaliation.
The agency's final order adopted the AJ's finding that complainant failed
to prove that he was subjected to discrimination as alleged. On appeal,
complainant reiterates his contention that the agency's actions were
motivated by reprisal for his prior protected EEO activity.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
Here, we concur with the AJ's finding that the agency articulated
legitimate, nondiscriminatory reasons for its actions. We also concur
with the AJ's finding that complainant failed to show that any of these
articulated reasons were a pretext for unlawful reprisal. We find that
complainant has proffered no evidence that the agency's actions were
motivated by retaliatory animus. Accordingly, we discern no basis to
disturb the AJ's decision, and the agency's final order is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
September 3, 2008
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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4,931 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120070672_Graham.txt | 0120070672_Graham.txt | TXT | text/plain | 10,186 | Kenneth L. Graham, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | September 29, 2006 | Appeal Number: 0120070672
Background:
At all times relevant to this complaint, complainant worked as a mail
handler at the agency's Processing and Distribution Center in San
Bernardino, California. In 2001, complainant was diagnosed with a
medial meniscus tear of left knee and a right knee sprain, which would
require surgery.
On March 13, 2002, complainant submitted a Department of Labor (DOL)
Form CA-2, Notice of Occupational Disease and Claim for Compensation,
concerning his knee injuries. On April 2, 2002, the DOL accepted
his claim.
On April 23, 2002, complainant called the agency's Injury Compensation
Office and asked if he could buy back the leave that he used for his
knee injury. Complainant was informed that, in accordance with agency
policy, he could not buy back any leave taken after the DOL accepted his
injury compensation claim on April 2, 2002. Complainant was informed
that the policy states that once DOL accepts a claim, an employee
can use leave without pay so as to conserve leave because DOL will be
compensating the employee during the time-frame of the accepted claim.
The record reveals that this was reiterated to complaint in writing on
July 1, 2002, and again via voicemail on July 18, 2002. Despite this,
complainant continued to use sick leave, and between April 16, 2002 and
August 19, 2002, used approximately 452 hours of sick leave in connection
with his knee injury.
Complainant further alleges that on an unspecified date, his supervisor
placed him on restricted sick leave. Complainant's supervisor states
that while he had discussions with complainant about placing him on
restricted sick leave in the future, complainant was never actually
placed on restricted sick leave.
Complainant initiated EEO Counselor contact on February 19, 2004. On
November 2, 2004, complainant filed a formal complaint of discrimination
on the basis of disability (medial meniscus tear of left knee and right
knee sprain) and in reprisal for filing a claim with DOL's Office of
Workers' Compensation Programs1 when:
1. On an unspecified date, his request to buy back sick leave was denied;
and
2. On an unspecified date, he was allegedly placed on restricted sick
leave.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested a
hearing; however, on September 20, 2006, the AJ issued a decision without
a hearing. The AJ dismissed both claims in complainant's complaint.
Specifically, with regard to claim 1, the AJ found that complainant was
untimely in his initial contact with an EEO Counselor. Further, the
AJ dismissed claim 2 finding that complainant failed to state a claim.
On September 29, 2006, the agency issued a final order fully implementing
the AJ's decision. Complainant now appeals to the Commission.
Legal Analysis:
the Commission.
ANALYSIS and FINDINGS
Claim 1
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. The
Commission has adopted a "reasonable suspicion" standard (as opposed to a
"supportive facts" standard) to determine when the forty-five (45) day
limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
The record supports a finding that complainant knew or should have known
of the alleged discrimination when his request to buy back his leave
was first denied in April 23, 2002. Complainant's EEO Counselor contact
on February 19, 2004, is well beyond the 45-day time limit. Therefore,
we AFFIRM the dismissal of this claim for untimely EEO Counselor contact.
Claim 2
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).
While complainant alleges that he was placed on restricted sick leave,
the record reveals that complainant was never placed on restricted
sick leave. The only mention of restricted sick leave was on May 15,
2003, where complainant's supervisor noted that he was considering
placing complainant on restricted sick leave. However, the supervisor
never actually placed complainant on restricted sick leave. Therefore,
complainant failed to show that he suffered a harm or loss with respect
to a term, condition, or privilege of employment. As a result, we AFFIRM
the dismissal of this claim for failure to state a claim. | Kenneth L. Graham,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070672
Agency No. 4F920011304
Hearing No. 340-2005-00612X
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated September 29, 2006, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §
791 et seq.
BACKGROUND
At all times relevant to this complaint, complainant worked as a mail
handler at the agency's Processing and Distribution Center in San
Bernardino, California. In 2001, complainant was diagnosed with a
medial meniscus tear of left knee and a right knee sprain, which would
require surgery.
On March 13, 2002, complainant submitted a Department of Labor (DOL)
Form CA-2, Notice of Occupational Disease and Claim for Compensation,
concerning his knee injuries. On April 2, 2002, the DOL accepted
his claim.
On April 23, 2002, complainant called the agency's Injury Compensation
Office and asked if he could buy back the leave that he used for his
knee injury. Complainant was informed that, in accordance with agency
policy, he could not buy back any leave taken after the DOL accepted his
injury compensation claim on April 2, 2002. Complainant was informed
that the policy states that once DOL accepts a claim, an employee
can use leave without pay so as to conserve leave because DOL will be
compensating the employee during the time-frame of the accepted claim.
The record reveals that this was reiterated to complaint in writing on
July 1, 2002, and again via voicemail on July 18, 2002. Despite this,
complainant continued to use sick leave, and between April 16, 2002 and
August 19, 2002, used approximately 452 hours of sick leave in connection
with his knee injury.
Complainant further alleges that on an unspecified date, his supervisor
placed him on restricted sick leave. Complainant's supervisor states
that while he had discussions with complainant about placing him on
restricted sick leave in the future, complainant was never actually
placed on restricted sick leave.
Complainant initiated EEO Counselor contact on February 19, 2004. On
November 2, 2004, complainant filed a formal complaint of discrimination
on the basis of disability (medial meniscus tear of left knee and right
knee sprain) and in reprisal for filing a claim with DOL's Office of
Workers' Compensation Programs1 when:
1. On an unspecified date, his request to buy back sick leave was denied;
and
2. On an unspecified date, he was allegedly placed on restricted sick
leave.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested a
hearing; however, on September 20, 2006, the AJ issued a decision without
a hearing. The AJ dismissed both claims in complainant's complaint.
Specifically, with regard to claim 1, the AJ found that complainant was
untimely in his initial contact with an EEO Counselor. Further, the
AJ dismissed claim 2 finding that complainant failed to state a claim.
On September 29, 2006, the agency issued a final order fully implementing
the AJ's decision. Complainant now appeals to the Commission.
ANALYSIS and FINDINGS
Claim 1
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. The
Commission has adopted a "reasonable suspicion" standard (as opposed to a
"supportive facts" standard) to determine when the forty-five (45) day
limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
The record supports a finding that complainant knew or should have known
of the alleged discrimination when his request to buy back his leave
was first denied in April 23, 2002. Complainant's EEO Counselor contact
on February 19, 2004, is well beyond the 45-day time limit. Therefore,
we AFFIRM the dismissal of this claim for untimely EEO Counselor contact.
Claim 2
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).
While complainant alleges that he was placed on restricted sick leave,
the record reveals that complainant was never placed on restricted
sick leave. The only mention of restricted sick leave was on May 15,
2003, where complainant's supervisor noted that he was considering
placing complainant on restricted sick leave. However, the supervisor
never actually placed complainant on restricted sick leave. Therefore,
complainant failed to show that he suffered a harm or loss with respect
to a term, condition, or privilege of employment. As a result, we AFFIRM
the dismissal of this claim for failure to state a claim.
CONCLUSION
Accordingly, after a thorough review of the record in its entirety,
including consideration of all statements submitted on appeal, it is
the decision of the Equal Employment Opportunity Commission to AFFIRM
the agency's final order dismissing complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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 25, 2009
Date
1 We note that filing an OWCP claim is not considered a prior protected
EEO activity under our regulations.
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4,932 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120070664.txt | 0120070664.txt | TXT | text/plain | 9,305 | Isabella M. Cook, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency. | September 29, 2006 | Appeal Number: 0120070664
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 29, 2006, dismissing her 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.
Legal Analysis:
Upon review, the Commission finds that complainant's complaint was
improperly dismissed.
During the relevant period, complainant was employed as a part-time
Customs and Border Protection Officer at a Detroit, Michigan Airport.
In a formal equal employment opportunity (EEO) complaint dated August 3,
2006, complainant alleged that the agency subjected her to discrimination
based on reprisal for prior EEO activity when, on August 21, 2005, it
increased her weekly duty hours from 16 to 32 in response to a coworker's
discrimination complaint, falsely stating that it was due to a national
initiative, and, thereby, forced her to resign from agency employment.
In its September 29, 2006 final decision, the agency dismissed
complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(1).
The agency noted that complainant alleged the basis of sex (female)
during the counseling stage and, subsequently, changed the basis alleged
to reprisal only. The agency stated that complainant does not have
prior EEO activity so her complaint of discrimination on the basis of
reprisal fails to state an actionable claim.
The Commission determines that the agency has addressed the merits
of complainant's claim without a proper investigation as required by
the regulations. We find that the agency's articulated reason for
its dismissal of complainant's complaint, i.e., that complainant does
not have prior EEO activity and alleged the basis of reprisal solely,
goes to the merits of the claim, and is irrelevant to the procedural
issue of whether she has stated a justiciable claim under Title VII.
See Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642
(August 15, 1991). Therefore, we find that the complaint states a claim
under EEOC regulations because complainant has alleged agency actions were
taken in retaliation for engaging in prior EEO activity (participation in
the complaint process or protected oppositional activity). See Lindsey
v. U. S. Postal Service, EEOC Request No. 05980410 (Nov. 4, 1999)(citing
EEOC Compliance Manual, No. 915.003 (May 20, 1998)).
Final Decision:
Accordingly, the agency's final decision dismissing complainant's complaint is reversed. | Isabella M. Cook,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120070664
Agency No. HS 06-CBP-002024-060110
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 29, 2006, dismissing her 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.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed.
During the relevant period, complainant was employed as a part-time
Customs and Border Protection Officer at a Detroit, Michigan Airport.
In a formal equal employment opportunity (EEO) complaint dated August 3,
2006, complainant alleged that the agency subjected her to discrimination
based on reprisal for prior EEO activity when, on August 21, 2005, it
increased her weekly duty hours from 16 to 32 in response to a coworker's
discrimination complaint, falsely stating that it was due to a national
initiative, and, thereby, forced her to resign from agency employment.
In its September 29, 2006 final decision, the agency dismissed
complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(1).
The agency noted that complainant alleged the basis of sex (female)
during the counseling stage and, subsequently, changed the basis alleged
to reprisal only. The agency stated that complainant does not have
prior EEO activity so her complaint of discrimination on the basis of
reprisal fails to state an actionable claim.
The Commission determines that the agency has addressed the merits
of complainant's claim without a proper investigation as required by
the regulations. We find that the agency's articulated reason for
its dismissal of complainant's complaint, i.e., that complainant does
not have prior EEO activity and alleged the basis of reprisal solely,
goes to the merits of the claim, and is irrelevant to the procedural
issue of whether she has stated a justiciable claim under Title VII.
See Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642
(August 15, 1991). Therefore, we find that the complaint states a claim
under EEOC regulations because complainant has alleged agency actions were
taken in retaliation for engaging in prior EEO activity (participation in
the complaint process or protected oppositional activity). See Lindsey
v. U. S. Postal Service, EEOC Request No. 05980410 (Nov. 4, 1999)(citing
EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Accordingly, the
agency's final decision dismissing complainant's complaint is reversed.
The matter is remanded for further processing consistent with this
decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 27, 2007
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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4,933 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120101696.txt | 0120101696.txt | TXT | text/plain | 9,910 | Bryce A. Hunter, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Executive Office of the U.S. Attorneys), Agency. | February 22, 2010 | Appeal Number: 0120101696
Background:
In a complaint dated August 28, 2009, Complainant alleged that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under Title VII when:
1. On or about June 29, 2009, management impliedly denied Complainant's request for a reassignment to a Supervisory IT Specialist (GS-13) position which had been vacant for 6 months;
2. On or about June 29, 2009, management did not accept Complainant's application as a 30% service-connected disabled veteran for a Supervisory IT Specialist (GS-13) position when the USAO had not announced the vacancy as a job opening;
3. On or about June 29, 2009, management changed the position description of the vacant Supervisory IT Specialist (GS-13) and eliminated the supervisory responsibilities; and,
4. On or about June 30, 2009, Complainant was subjected to a hostile work environment based on reprisal when management officials required him to attend a meeting, and he did not have time to prepare for his participation later that day in a co-workers EEO proceeding.
CONTENTIONS ON APPEAL
Complainant insists that the Agency erred in concluding that his complaint failed to state a claim. Specifically, Complainant maintains that he was not selected for a position as a result of his prior participation in the EEO process. The Agency did not submit any brief in support of its argument.
Legal Analysis:
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
In a complaint dated August 28, 2009, Complainant alleged that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under Title VII when:
1. On or about June 29, 2009, management impliedly denied Complainant's request for a reassignment to a Supervisory IT Specialist (GS-13) position which had been vacant for 6 months;
2. On or about June 29, 2009, management did not accept Complainant's application as a 30% service-connected disabled veteran for a Supervisory IT Specialist (GS-13) position when the USAO had not announced the vacancy as a job opening;
3. On or about June 29, 2009, management changed the position description of the vacant Supervisory IT Specialist (GS-13) and eliminated the supervisory responsibilities; and,
4. On or about June 30, 2009, Complainant was subjected to a hostile work environment based on reprisal when management officials required him to attend a meeting, and he did not have time to prepare for his participation later that day in a co-workers EEO proceeding.
CONTENTIONS ON APPEAL
Complainant insists that the Agency erred in concluding that his complaint failed to state a claim. Specifically, Complainant maintains that he was not selected for a position as a result of his prior participation in the EEO process. The Agency did not submit any brief in support of its argument.
ANALYSIS AND FINDINGS
A complaint should not be dismissed for failure to state a claim unless there are insufficient facts present to support a claim that is at least plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007). EEOC Regulation 29 C.F.R. § 1614.107(a) provides that an agency shall dismiss a complaint that fails to state a claim under 29 C.F.R. §§ 1614.103 or 1614.106(a). Commission regulations further provide 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 the agency because of race, color, religion, national origin, sex, age, disability, or reprisal. Fucci v. U.S. Postal Serv., EEOC Appeal No. 01956625 (August 27, 1996). 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. Sims v. U.S. Postal Serv., EEOC Appeal No. 0120101113 (June 4, 2010) (citing Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994)).
In Cobb v. Dep't of Treasury, EEOC Appeal No. 01960215 (March 13, 1997), the Commission stated that, "terms, conditions, or privileges of employment include, inter alia, promotion, demotion, discipline, reasonable accommodation, appraisals, awards, training, benefits, assignments, overtime, leave, tours of duty, etc.," and that, "[a] complaint which alleges unlawful disparate treatment regarding a specific term, condition, or privilege of employment should not be dismissed for failure to state a claim." See e.g., Miller v. Social Security Administration, EEOC Appeal No. 01944464 (April 4, 1996) (intense scrutiny of work product); Brown v. Dep't of Treasury, EEOC Appeal No. 01943177 (December 14, 1995) (type of assignments).
The Commission finds that the complaint fails to state a claim under EEOC regulations because 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 (April 21, 1994). With respect to Claims 1 & 2, the Commission notes that the position in question (Supervisory Information Technology Specialist), though vacant, had not been announced. When the former occupant of that position departed, the Agency notified its employees that the position was vacant and that an announcement would be forthcoming; the announcement, however, never came. Instead, the Agency converted the position into a new one (Lead Information Technology Specialist), and later announced the vacancy to employees. Thus, the Agency never officially opened the Supervisory Information Technology position and, therefore, Complainant (or any other employee) was not "denied" selection or reassignment.
Further, the decision to convert the Supervisory Information Technology Specialist into a Lead Information Technology Specialist cannot form the basis of a cause given that the older position was not an announced vacancy. Finally, the Commission agrees with the Agency that the meeting Complainant points to as evidence of retaliation cannot, without more, form the basis of a cause. Complainant was not prevented from attending the EEO interview; he was merely required to attend it earlier so he could be present for the meeting where reorganization was announced. Further, though Complainant states management required his attendance at the meeting to intimidate him, the record shows that Complainant's supervisor asked him to attend for only five minutes - and informed Complainant that he was free to meet with the investigator afterwards. This is hardly the sort of conduct that would deter a reasonable employee from exercising his rights through the EEO process.
Final Decision:
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. | Bryce A. Hunter,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Executive Office of the U.S. Attorneys),
Agency.
Appeal No. 0120101696
Agency No. USA-2009-00578
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 22, 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. 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
In a complaint dated August 28, 2009, Complainant alleged that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under Title VII when:
1. On or about June 29, 2009, management impliedly denied Complainant's request for a reassignment to a Supervisory IT Specialist (GS-13) position which had been vacant for 6 months;
2. On or about June 29, 2009, management did not accept Complainant's application as a 30% service-connected disabled veteran for a Supervisory IT Specialist (GS-13) position when the USAO had not announced the vacancy as a job opening;
3. On or about June 29, 2009, management changed the position description of the vacant Supervisory IT Specialist (GS-13) and eliminated the supervisory responsibilities; and,
4. On or about June 30, 2009, Complainant was subjected to a hostile work environment based on reprisal when management officials required him to attend a meeting, and he did not have time to prepare for his participation later that day in a co-workers EEO proceeding.
CONTENTIONS ON APPEAL
Complainant insists that the Agency erred in concluding that his complaint failed to state a claim. Specifically, Complainant maintains that he was not selected for a position as a result of his prior participation in the EEO process. The Agency did not submit any brief in support of its argument.
ANALYSIS AND FINDINGS
A complaint should not be dismissed for failure to state a claim unless there are insufficient facts present to support a claim that is at least plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007). EEOC Regulation 29 C.F.R. § 1614.107(a) provides that an agency shall dismiss a complaint that fails to state a claim under 29 C.F.R. §§ 1614.103 or 1614.106(a). Commission regulations further provide 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 the agency because of race, color, religion, national origin, sex, age, disability, or reprisal. Fucci v. U.S. Postal Serv., EEOC Appeal No. 01956625 (August 27, 1996). 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. Sims v. U.S. Postal Serv., EEOC Appeal No. 0120101113 (June 4, 2010) (citing Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994)).
In Cobb v. Dep't of Treasury, EEOC Appeal No. 01960215 (March 13, 1997), the Commission stated that, "terms, conditions, or privileges of employment include, inter alia, promotion, demotion, discipline, reasonable accommodation, appraisals, awards, training, benefits, assignments, overtime, leave, tours of duty, etc.," and that, "[a] complaint which alleges unlawful disparate treatment regarding a specific term, condition, or privilege of employment should not be dismissed for failure to state a claim." See e.g., Miller v. Social Security Administration, EEOC Appeal No. 01944464 (April 4, 1996) (intense scrutiny of work product); Brown v. Dep't of Treasury, EEOC Appeal No. 01943177 (December 14, 1995) (type of assignments).
The Commission finds that the complaint fails to state a claim under EEOC regulations because 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 (April 21, 1994). With respect to Claims 1 & 2, the Commission notes that the position in question (Supervisory Information Technology Specialist), though vacant, had not been announced. When the former occupant of that position departed, the Agency notified its employees that the position was vacant and that an announcement would be forthcoming; the announcement, however, never came. Instead, the Agency converted the position into a new one (Lead Information Technology Specialist), and later announced the vacancy to employees. Thus, the Agency never officially opened the Supervisory Information Technology position and, therefore, Complainant (or any other employee) was not "denied" selection or reassignment.
Further, the decision to convert the Supervisory Information Technology Specialist into a Lead Information Technology Specialist cannot form the basis of a cause given that the older position was not an announced vacancy. Finally, the Commission agrees with the Agency that the meeting Complainant points to as evidence of retaliation cannot, without more, form the basis of a cause. Complainant was not prevented from attending the EEO interview; he was merely required to attend it earlier so he could be present for the meeting where reorganization was announced. Further, though Complainant states management required his attendance at the meeting to intimidate him, the record shows that Complainant's supervisor asked him to attend for only five minutes - and informed Complainant that he was free to meet with the investigator afterwards. This is hardly the sort of conduct that would deter a reasonable employee from exercising his rights through the EEO process. 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 (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
August 3, 2010
__________________
Date
| [
"Fucci v. U.S. Postal Serv., EEOC Appeal No. 01956625 (August 27, 1996)",
"Sims v. U.S. Postal Serv., EEOC Appeal No. 0120101113 (June 4, 2010)",
"Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994)",
"In Cobb v. Dep't of Treasury, EEOC Appeal No. 01960215 (March 13, 1997)",
"Miller v... | [
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0.034735... |
4,934 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120101183.txt | 0120101183.txt | TXT | text/plain | 8,514 | Jasvir Khosa, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency. | January 7, 2010 | Appeal Number: 0120101183
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 7, 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.
Legal Analysis:
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
In a complaint dated December 8, 2009, Complainant alleged that he was
subjected to discrimination on the bases of race (East Indian), national
origin (unspecified), religion (unspecified), color (unspecified),
and reprisal for prior protected EEO activity when:
On October 19, 2009, Complainant left work early because he was ill
and requested sick leave under the Family and Medical Leave Act (FMLA),
Complainant's manager (M1) requested that Complainant provide medical
documentation.
The Agency dismissed the complaint for failure to state a claim, on the
grounds that the complaint was in essence a collateral attack on FMLA
proceedings, which fall within the purview of the Department of Labor
(DOL) and,
Final Decision:
accordingly, are not cognizable under EEO laws. CONTENTIONS ON APPEAL Complainant did not offer any comments or brief in support of this appeal. The Agency continues to adhere to its prior position, viz., that the claim is outside the purview of Title VII and EEO law. The issue on appeal is whether the Agency properly dismissed the complaint on the grounds that Complainant failed to state a claim under 29 C.F.R. § 1614.103. FINDINGS AND ANALYSIS EEOC regulations state that an agency may dismiss a complaint that fails to state a claim under either 29 C.F.R. § 1614.103 or § 1614.106(a). See 29 C.F.R. § 1614.107(a). A complainant must establish that he is aggrieved for the purpose of satisfying these requirements; in order to be aggrieved a complainant must allege discrimination or retaliation of the kind prohibited by at least one of the statutes enforced by the Commission, e.g., Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Where a complaint states a claim or claims that are beyond the reach of at least one of the relevant EEO laws, the Commission holds that it is proper for an agency to dismiss the complaint for failure to state a claim. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998). The Commission agrees with the Agency that, despite Complainant's invocation of Title VII, Complainant's claim constitutes a collateral attack on the FMLA process. The FMLA falls under the regulatory ambit of the DOL, not the Commission; therefore, the Commission has no jurisdiction over this type of claim. See, e.g., Jordan v. Department of Defense, EEOC Appeal No. 0120055250 (December 28, 2006) ("[T]he Commission does not have jurisdiction over FMLA claims."); cf. Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993) ("An EEO complaint which alleges that discriminatory actions have been taken to influence the outcome of a decision rendered under a negotiated grievance procedure is outside the purview of EEOC regulations and should be rejected."). Even assuming that the claim was cognizable by the Commission, the complaint nevertheless fails. EEOC case precedent holds that in order to state a claim, a complainant must be aggrieved by showing an injury to a term, condition, or privilege of employment, or, in the alternative, by showing either severe or pervasive harassment. Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). A mere request for additional documentation supporting a request for FMLA sick leave, assuming arguendo that the Commission has jurisdiction over the issue, would not amount to severe or pervasive harassment. See Emmons v. USPS, EEOC Appeal No. 01A34815 (October 15, 2003). Further, the Commission finds that the complaint fails to state a claim under the EEOC regulations because 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Accordingly, the agency's final decision dismissing complainant's complaint is AFFIRMED. | Jasvir Khosa,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120101183
Agency No. 1F937000310
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 7, 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.
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
In a complaint dated December 8, 2009, Complainant alleged that he was
subjected to discrimination on the bases of race (East Indian), national
origin (unspecified), religion (unspecified), color (unspecified),
and reprisal for prior protected EEO activity when:
On October 19, 2009, Complainant left work early because he was ill
and requested sick leave under the Family and Medical Leave Act (FMLA),
Complainant's manager (M1) requested that Complainant provide medical
documentation.
The Agency dismissed the complaint for failure to state a claim, on the
grounds that the complaint was in essence a collateral attack on FMLA
proceedings, which fall within the purview of the Department of Labor
(DOL) and, accordingly, are not cognizable under EEO laws.
CONTENTIONS ON APPEAL
Complainant did not offer any comments or brief in support of this appeal.
The Agency continues to adhere to its prior position, viz., that the claim
is outside the purview of Title VII and EEO law. The issue on appeal
is whether the Agency properly dismissed the complaint on the grounds
that Complainant failed to state a claim under 29 C.F.R. § 1614.103.
FINDINGS AND ANALYSIS
EEOC regulations state that an agency may dismiss a complaint that fails
to state a claim under either 29 C.F.R. § 1614.103 or § 1614.106(a).
See 29 C.F.R. § 1614.107(a). A complainant must establish that he is
aggrieved for the purpose of satisfying these requirements; in order
to be aggrieved a complainant must allege discrimination or retaliation
of the kind prohibited by at least one of the statutes enforced by the
Commission, e.g., Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq. Where a complaint states a claim or claims
that are beyond the reach of at least one of the relevant EEO laws,
the Commission holds that it is proper for an agency to dismiss the
complaint for failure to state a claim. See Wills v. Department of
Defense, EEOC Request No. 05970596 (July 30, 1998).
The Commission agrees with the Agency that, despite Complainant's
invocation of Title VII, Complainant's claim constitutes a collateral
attack on the FMLA process. The FMLA falls under the regulatory ambit of
the DOL, not the Commission; therefore, the Commission has no jurisdiction
over this type of claim. See, e.g., Jordan v. Department of Defense,
EEOC Appeal No. 0120055250 (December 28, 2006) ("[T]he Commission does
not have jurisdiction over FMLA claims."); cf. Lingad v. USPS, EEOC
Request No. 05930106 (June 24, 1993) ("An EEO complaint which alleges
that discriminatory actions have been taken to influence the outcome of
a decision rendered under a negotiated grievance procedure is outside
the purview of EEOC regulations and should be rejected.").
Even assuming that the claim was cognizable by the Commission, the
complaint nevertheless fails. EEOC case precedent holds that in order
to state a claim, a complainant must be aggrieved by showing an injury
to a term, condition, or privilege of employment, or, in the alternative,
by showing either severe or pervasive harassment. Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997). A mere request
for additional documentation supporting a request for FMLA sick leave,
assuming arguendo that the Commission has jurisdiction over the issue,
would not amount to severe or pervasive harassment. See Emmons v. USPS,
EEOC Appeal No. 01A34815 (October 15, 2003).
Further, the Commission finds that the complaint fails to state a claim
under the EEOC regulations because 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. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). Accordingly, the
agency's final decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
June 15, 2010
__________________
Date
| [
"Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998)",
"Jordan v. Department of Defense, EEOC Appeal No. 0120055250 (December 28, 2006)",
"Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993)",
"Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997)",
"Diaz... | [
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4,935 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120101101.txt | 0120101101.txt | TXT | text/plain | 8,208 | Giani S. Valentino, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. | December 7, 2009 | Appeal Number: 0120101101
Complaint Allegations:
In her complaint, complainant alleged that she was subjected to discrimination on the basis of reprisal for prior protected EEO activity1 when: 1. On August 1, 2009, complainant left a note written to delivery services on Building 1 to inform them of her new address for all new packages delivered after August 1, 2009. 2. On August 3, 2009, complainant came to the apartment to check for packages and noticed that her note had been removed. Complainant contacted the Regional Council and had the note sanctioned. 3. On August 11, 2009, complainant returned to the building to pick up a package which complainant expected containing a gift card. Complainant new the package had been delivered by its tracking. Complainant found no package at her former apartment. Complainant spoke to the police and filed a police report regarding missing property. Complainant noted that the gift card had not been forwarded or recovered.
Case Facts:
Complainant filed a timely appeal with this Commission from the
agency's decision dated December 7, 2009, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §
791 et seq.
The record indicated that complainant left her employment with the agency.
We note that complainant filed an EEO complaint regarding the events that
led to her resignation. As a result of the resignation, complainant was
required to move out from her employee residence. Complainant left a note
informing delivery services of her new address. Complainant returned
to the apartment to find the note missing. When complainant left a
second note, it too disappeared. As a result, complainant contacted
the EEO office. When the matter could not be resolved, complainant
filed a formal complaint. In her complaint, complainant alleged that
she was subjected to discrimination on the basis of reprisal for prior
protected EEO activity1 when:
1. On August 1, 2009, complainant left a note written to delivery
services on Building 1 to inform them of her new address for all new
packages delivered after August 1, 2009.
2. On August 3, 2009, complainant came to the apartment to check for
packages and noticed that her note had been removed. Complainant
contacted the Regional Council and had the note sanctioned.
3. On August 11, 2009, complainant returned to the building to pick up a
package which complainant expected containing a gift card. Complainant
new the package had been delivered by its tracking. Complainant found
no package at her former apartment. Complainant spoke to the police
and filed a police report regarding missing property. Complainant noted
that the gift card had not been forwarded or recovered.
The record indicated that complainant believed her former neighbor had
removed the notes from complainant's former apartment.
The agency dismissed the instant complaint for failure to state a claim,
pursuant to 29 C.F.R. § 1614.107(a)(1). Complainant appealed. On appeal,
complainant argued that the agency failed to respond to her issues of
the mail. As such, complainant believed this constituted institutional
harassment which she experienced during her employment with the agency.
Complainant asserted on appeal that the Hospital Director and the
Regional Counsel were the responsible management officials. In addition,
complainant included a copy of the police report and documents related to
her prior EEO complaint. Finally, complainant raised arguments related
to her prior EEO complaint and the harassment she faced while an employee
with the agency.
We note that in the complaint file, complainant alleged that the notes
were most likely removed by her former neighbor. Complainant has not
established a connection between her former neighbor and her prior
employment. Further, based on our review of the record, we find that
the complaint fails to state a claim under the
Legal Analysis:
EEOC regulations because
complainant failed to show that she suffered harm or loss with respect
to a term, condition, or privilege of employment for which there is a
remedy. See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). Moreover, we find that the claims, 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. Department of the Treasury, EEOC Request no. 05970077
(March 13, 1997). Finally, the alleged agency actions were not of a
type reasonably likely to deter complainant or others from engaging in
protected activity. | Giani S. Valentino,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101101
Agency No. 200H05182009104344
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated December 7, 2009, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §
791 et seq.
The record indicated that complainant left her employment with the agency.
We note that complainant filed an EEO complaint regarding the events that
led to her resignation. As a result of the resignation, complainant was
required to move out from her employee residence. Complainant left a note
informing delivery services of her new address. Complainant returned
to the apartment to find the note missing. When complainant left a
second note, it too disappeared. As a result, complainant contacted
the EEO office. When the matter could not be resolved, complainant
filed a formal complaint. In her complaint, complainant alleged that
she was subjected to discrimination on the basis of reprisal for prior
protected EEO activity1 when:
1. On August 1, 2009, complainant left a note written to delivery
services on Building 1 to inform them of her new address for all new
packages delivered after August 1, 2009.
2. On August 3, 2009, complainant came to the apartment to check for
packages and noticed that her note had been removed. Complainant
contacted the Regional Council and had the note sanctioned.
3. On August 11, 2009, complainant returned to the building to pick up a
package which complainant expected containing a gift card. Complainant
new the package had been delivered by its tracking. Complainant found
no package at her former apartment. Complainant spoke to the police
and filed a police report regarding missing property. Complainant noted
that the gift card had not been forwarded or recovered.
The record indicated that complainant believed her former neighbor had
removed the notes from complainant's former apartment.
The agency dismissed the instant complaint for failure to state a claim,
pursuant to 29 C.F.R. § 1614.107(a)(1). Complainant appealed. On appeal,
complainant argued that the agency failed to respond to her issues of
the mail. As such, complainant believed this constituted institutional
harassment which she experienced during her employment with the agency.
Complainant asserted on appeal that the Hospital Director and the
Regional Counsel were the responsible management officials. In addition,
complainant included a copy of the police report and documents related to
her prior EEO complaint. Finally, complainant raised arguments related
to her prior EEO complaint and the harassment she faced while an employee
with the agency.
We note that in the complaint file, complainant alleged that the notes
were most likely removed by her former neighbor. Complainant has not
established a connection between her former neighbor and her prior
employment. Further, based on our review of the record, we find that
the complaint fails to state a claim under the EEOC regulations because
complainant failed to show that she suffered harm or loss with respect
to a term, condition, or privilege of employment for which there is a
remedy. See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). Moreover, we find that the claims, 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. Department of the Treasury, EEOC Request no. 05970077
(March 13, 1997). Finally, the alleged agency actions were not of a
type reasonably likely to deter complainant or others from engaging in
protected activity.
CONCLUSION
Accordingly, we AFFIRM the agency's final decision dismissing the
complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
May 28, 2010
__________________
Date
1 The record indicates that complainant participated in prior protected
activity, but it is unclear under which statute such activity occurred.
??
??
??
??
| [
"Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.604",
"29 C.F.R. § 1614.604(c)",
"29 U.S.C. § 791",
"42 U.S.C. § 2000e",
"29 U.S.C. §§ 791"
] | [
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0.00421028072014451,
-0.01682469993829727,
0.0185039... |
4,936 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120101005.txt | 0120101005.txt | TXT | text/plain | 9,103 | Jose A. Hawkins, III, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. | December 4, 2009 | Appeal Number: 0120101005
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 4, 2009, 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.
Legal Analysis:
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim.
In its dismissal decision, the agency framed the issue raised by
complainant as alleging that he was subjected to discrimination on the
basis of reprisal for prior protected EEO activity under Title VII of
the Civil Rights Act of 1964 when "he was not selected for an Aircraft
Overhaul Helper, WG-8801-5 position." The agency dismissed the matter for
failure to state a claim, asserting that complainant previously pursued
an EEO complaint on the same non-selection, which he later withdrew.
A review of the record indicates that complainant did initially
filed an earlier complaint on his non-selection for the position in
question. However, complainant later withdrew his complaint because he had
been selected for the position. Indeed, the EEO processing officer stated
in his report that complainant "previously filed and withdrew informal
complaint after he found out he had been selected on same announcement."
The record contains a list of various applicants for the position in
question with the designation "selected" and "non-selected." That list
indicates complainant was selected.
It is clear in his current complaint that complainant is now alleging that
the job offer was later withdrawn, as he explained to the EEO officer.
That is the claim before us. Complainant gives the date as September 30,
2009, which would make his EEO counselor contact timely.
Complainant has timely alleged an injury or harm to a term, condition,
or privilege of employment for which there is a remedy. See Diaz
v. Department of the Air Force, EEOC Request No. 05931049 (April 21,
1994).
Final Decision:
Accordingly, the agency's final decision dismissing complainant's complaint is reversed. | Jose A. Hawkins, III,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120101005
Agency No. ARCCAD09SEP04458
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 4, 2009, 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.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim.
In its dismissal decision, the agency framed the issue raised by
complainant as alleging that he was subjected to discrimination on the
basis of reprisal for prior protected EEO activity under Title VII of
the Civil Rights Act of 1964 when "he was not selected for an Aircraft
Overhaul Helper, WG-8801-5 position." The agency dismissed the matter for
failure to state a claim, asserting that complainant previously pursued
an EEO complaint on the same non-selection, which he later withdrew.
A review of the record indicates that complainant did initially
filed an earlier complaint on his non-selection for the position in
question. However, complainant later withdrew his complaint because he had
been selected for the position. Indeed, the EEO processing officer stated
in his report that complainant "previously filed and withdrew informal
complaint after he found out he had been selected on same announcement."
The record contains a list of various applicants for the position in
question with the designation "selected" and "non-selected." That list
indicates complainant was selected.
It is clear in his current complaint that complainant is now alleging that
the job offer was later withdrawn, as he explained to the EEO officer.
That is the claim before us. Complainant gives the date as September 30,
2009, which would make his EEO counselor contact timely.
Complainant has timely alleged an injury or harm to a term, condition,
or privilege of employment for which there is a remedy. See Diaz
v. Department of the Air Force, EEOC Request No. 05931049 (April 21,
1994). Accordingly, the agency's final decision dismissing complainant's
complaint is reversed. The complaint is hereby remanded to the agency for
further processing in accordance with this decision and the Order below.
ORDER (E0408)
The agency is ordered to process the remanded claim in accordance with 29
C.F.R. § 1614.108 et seq. 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 (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (R0408)
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 (Z1008)
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
May 25, 2010
__________________
Date
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4,937 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120100788.txt | 0120100788.txt | TXT | text/plain | 11,123 | Mary L. Edwards, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, (Bureau of Reclamation), Agency. | December 2, 2009 | Appeal Number: 0120100788
Background:
At the time of events giving rise to this complaint, Complainant worked as a Secretary at the Agency's Bureau of Reclamation facility in Sacramento, California. Complainant was hired by the Agency in October 2008, through a Schedule A appointment, for individuals with disabilities.
On February 22, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (anxiety, depression, degenerative knees), age (49), and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 Section 501 of the Rehabilitation Act of 1973 when:
1. Complainant was subjected to harassment (hostile work environment) from October 20, 2008, through January 21, 2009, which harassment included the following incidents:
a. Complainant's supervisor (S1) yelled at her;
b. S1 used intimidating and barraging conversations toward Complainant;
c. S1 attacked the Complainant's character in a demeaning and belittling manner;
d. S1 would not allow the Complainant to participate in strategic planning meetings for the office;
e. S1 would make derogatory remarks regarding women in the workplace;
f. S1 would not provide the Complainant with learning and professional growth opportunities, and;
g. On December 10, 2008, S1 grabbed the Complainant by her shoulders and shook her.
2. Complainant was removed from her position as Secretary, effective January 30, 2009.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested that the Agency issue a final decision pursuant to 29 C.F.R. § 1614.110(b).
In its December 2, 2009 decision, the Agency found that the incidents Complainant described in her complaint, assuming they occurred as Complainant alleged, did not rise to the level of harassment in that they were neither severe nor pervasive. The Agency found moreover that the evidence did not show that the acts of yelling were motivated by any of the bases identified in the complaint. The Agency noted that witnesses, including S1, described Complainant as sensitive or very sensitive and may have perceived direct questions about her work as "yelling." Agency's Final Decision, December 2, 2009, at 8.
With respect to claim (2), the Agency found Complainant established a prima facie case of discrimination based on reprisal because Complainant's effective termination on January 30, 2009, followed closely Complainant's initial EEO contact on January 20, 2009. However, the Agency found that Complainant's prima facie case was defeated by the reasons articulated by S1 and other witnesses regarding Complainant's performance. Specifically, S1 and other staff members with whom Complainant worked reported encountering ongoing problems with Complainant ability to complete assignments. Id. at 9. S1, the Agency noted, observed that Complainant's performance (ability to work without assistance, error rate) was not improving in the time she worked for the Agency, and S1 made the decision to terminate Complainant's employment in December 2008. Id. at 9. The Agency found no evidence that S1's reasons were a pretext for discrimination and that Complainant's age, disability, or reprisal was the real reason for terminating Complainant's employment. Id.
The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Id.
Legal Analysis:
the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Secretary at the Agency's Bureau of Reclamation facility in Sacramento, California. Complainant was hired by the Agency in October 2008, through a Schedule A appointment, for individuals with disabilities.
On February 22, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (anxiety, depression, degenerative knees), age (49), and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 Section 501 of the Rehabilitation Act of 1973 when:
1. Complainant was subjected to harassment (hostile work environment) from October 20, 2008, through January 21, 2009, which harassment included the following incidents:
a. Complainant's supervisor (S1) yelled at her;
b. S1 used intimidating and barraging conversations toward Complainant;
c. S1 attacked the Complainant's character in a demeaning and belittling manner;
d. S1 would not allow the Complainant to participate in strategic planning meetings for the office;
e. S1 would make derogatory remarks regarding women in the workplace;
f. S1 would not provide the Complainant with learning and professional growth opportunities, and;
g. On December 10, 2008, S1 grabbed the Complainant by her shoulders and shook her.
2. Complainant was removed from her position as Secretary, effective January 30, 2009.
At the | Mary L. Edwards,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
(Bureau of Reclamation),
Agency.
Appeal No. 0120100788
Agency No. BOR-09-0204
DECISION
Complainant filed an appeal from the Agency's December 2, 2009 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Secretary at the Agency's Bureau of Reclamation facility in Sacramento, California. Complainant was hired by the Agency in October 2008, through a Schedule A appointment, for individuals with disabilities.
On February 22, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (anxiety, depression, degenerative knees), age (49), and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 Section 501 of the Rehabilitation Act of 1973 when:
1. Complainant was subjected to harassment (hostile work environment) from October 20, 2008, through January 21, 2009, which harassment included the following incidents:
a. Complainant's supervisor (S1) yelled at her;
b. S1 used intimidating and barraging conversations toward Complainant;
c. S1 attacked the Complainant's character in a demeaning and belittling manner;
d. S1 would not allow the Complainant to participate in strategic planning meetings for the office;
e. S1 would make derogatory remarks regarding women in the workplace;
f. S1 would not provide the Complainant with learning and professional growth opportunities, and;
g. On December 10, 2008, S1 grabbed the Complainant by her shoulders and shook her.
2. Complainant was removed from her position as Secretary, effective January 30, 2009.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested that the Agency issue a final decision pursuant to 29 C.F.R. § 1614.110(b).
In its December 2, 2009 decision, the Agency found that the incidents Complainant described in her complaint, assuming they occurred as Complainant alleged, did not rise to the level of harassment in that they were neither severe nor pervasive. The Agency found moreover that the evidence did not show that the acts of yelling were motivated by any of the bases identified in the complaint. The Agency noted that witnesses, including S1, described Complainant as sensitive or very sensitive and may have perceived direct questions about her work as "yelling." Agency's Final Decision, December 2, 2009, at 8.
With respect to claim (2), the Agency found Complainant established a prima facie case of discrimination based on reprisal because Complainant's effective termination on January 30, 2009, followed closely Complainant's initial EEO contact on January 20, 2009. However, the Agency found that Complainant's prima facie case was defeated by the reasons articulated by S1 and other witnesses regarding Complainant's performance. Specifically, S1 and other staff members with whom Complainant worked reported encountering ongoing problems with Complainant ability to complete assignments. Id. at 9. S1, the Agency noted, observed that Complainant's performance (ability to work without assistance, error rate) was not improving in the time she worked for the Agency, and S1 made the decision to terminate Complainant's employment in December 2008. Id. at 9. The Agency found no evidence that S1's reasons were a pretext for discrimination and that Complainant's age, disability, or reprisal was the real reason for terminating Complainant's employment. Id.
The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Id.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
In the instant case, we assume, without so finding, that Complainant is a qualified individual with a disability. We find the evidence supports the Agency's final decision. Specifically, we find, as did the Agency that the incidents Complainant described are not so severe as to interfere with the terms and conditions of Complainant's work. We find the evidence does not corroborate that S1 yelled at Complainant (either on occasion or frequently), and we find the evidence indicates that confrontations between S1 and Complainant, though unwelcome by Complainant, were related to Complainant's work. We consider the statement of a co-worker, E1, who sat outside S1's office and did not hear S1 yell at Complainant. E1 observed that Complainant seemed easily upset by job stress. Affidavit of E1, June 3, 2009, Record on Appeal (ROA) at 165. We find that Complainant has not shown that she was subjected to unwelcome conduct that rose to the level of harassment or that any alleged incident of harassment was motivated by discrimination.
We further find the evidence does not show that S1's decision to terminate Complainant's employment was motivated by her disability, age or reprisal for prior EEO activity. Specifically, we note that as a term of Complainant's employment, Complainant was required to complete two years of service successfully. Letter of Appointment, October 2, 2008, ROA at 175. We observe that in her statement, S1 explained that Complainant's work was not being done correctly and that this was brought to Complainant's attention in weekly meetings. Further, S1 stated that by December, S1 noticed that Complainant's work was not improving. S1 decided to terminate Complainant's employment having determined that Complainant could not perform the tasks she was assigned. Affidavit S1, Exhibit 9, ROA at 142 et seq.
We find that Complainant has not identified any similarly situated employees, not in her protected groups, who were treated any better than she was under the same circumstances. Complainant has not, we find, shown that S1's reasons for her termination were false and a pretext to mask discrimination.
CONCLUSION
We AFFIRM the Agency's final decision finding no discrimination.
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 9, 2010
__________________
Date
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4,938 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120100627.txt | 0120100627.txt | TXT | text/plain | 9,015 | Manuel Alvarez, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency. | October 22, 2009 | Appeal Number: 0120100627
Complaint Allegations:
In his complaint, Complainant contended that a GS-13 position was canceled because it was intended for Employee 1, who was later given the position non-competitively. The Agency dismissed claim 1 for abuse of the EEO process. 29 C.F.R. § 1614.107(a)(9). It reasoned that Complainant raised the same claim in prior complaint number NY-09-0413, which was filed in May 2009. The record contains an EEO investigative âinterrogatoryâ indicating the accepted issue was whether Complainant was subjected to discrimination when on February 12, 2009, the Agency canceled vacancy announcement SN-220469-09-ROII-015 for the position of Lead Social Insurance Specialist (AAA) GS-0105-13. It indicated that Complainant alleged the announcement was canceled so Employee 1 could be placed into the position. In the unsigned interrogatory, a management official denied that Employee 1 was placed into the position after the announcement was canceled, asserting she was promoted to a different permanent position.
Background:
At the time of events giving rise to this complaint, Complainant worked
as a Staff Assistant, GS-12 at the Agencyâs San Juan District Office
facility in San Juan, Puerto Rico. In September 2009 he filed a formal
complaint alleging that the Agency discriminated against him based on
his sex (male), age (63 and 64), and reprisal for prior protected EEO
activity when:
1. he was not selected for the position of Lead Social Insurance
Specialist (AAA), advertised under job announcement number (JAN)
SH-220469-090-R011-015; and
2. on June 23, 2009, he learned that Management decided to discard a
file of an audit that he was assigned to perform.
In his complaint, Complainant contended that a GS-13 position was
canceled because it was intended for Employee 1, who was later given
the position non-competitively. The Agency dismissed claim 1 for abuse
of the EEO process. 29 C.F.R. § 1614.107(a)(9). It reasoned that
Complainant raised the same claim in prior complaint number NY-09-0413,
which was filed in May 2009.
The record contains an EEO investigative âinterrogatoryâ indicating
the accepted issue was whether Complainant was subjected to discrimination
when on February 12, 2009, the Agency canceled vacancy announcement
SN-220469-09-ROII-015 for the position of Lead Social Insurance Specialist
(AAA) GS-0105-13. It indicated that Complainant alleged the announcement
was canceled so Employee 1 could be placed into the position. In the
unsigned interrogatory, a management official denied that Employee 1 was
placed into the position after the announcement was canceled, asserting
she was promoted to a different permanent position.
The Agency dismissed claim 2 for failure to state a claim. 29 C.F.R. §
1614.107(a)(1). It reasoned that Complainant was not harmed.
CONTENTIONS ON APPEAL
On appeal, Complainant appears to argue that complaint NY-09-0413
does not contain the same issues, but gives no explanation of this.
He writes that he has not filed multiple complaints on the same violation.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.107(a)(1) requires the dismissal
of a complaint that states the same claim that is pending before or
has been decided by the Agency or Commission. Based on our review
of the record, we find claim 1 was in prior complaint NY-09-0413.
While the vacancy announcement number in claim 1 does not precisely
match that in the prior complaint, likely due to a keyboarding error,
Complainantâs contentions regarding Employee 1 show they regard the
same position, and state the same claim. The record, however, does not
support the Agencyâs finding that claim 1 is part of a clear pattern
of misuse of the EEO process for a purpose other than the prevention
and elimination of employment discrimination, the grounds for dismissal
under 29 C.F.R. § 1614.107(a)(9). The record only contained evidence
that Complainant once raised claim 1 in a prior complaint, which does
not meet the above standard.
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 Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll.
Applying the above, we find that claim 2 fails to state a claim because
Complainant was not aggrieved. Also, the Agencyâs action would not
reasonably likely deter EEO activity.
The Agencyâs decision to dismiss Complainantâs complaint is AFFIRMED. | 
Manuel Alvarez,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120100627
Agency No. NY-09-0724
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 22, 2009, 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 a Staff Assistant, GS-12 at the Agencyâs San Juan District Office
facility in San Juan, Puerto Rico. In September 2009 he filed a formal
complaint alleging that the Agency discriminated against him based on
his sex (male), age (63 and 64), and reprisal for prior protected EEO
activity when:
1. he was not selected for the position of Lead Social Insurance
Specialist (AAA), advertised under job announcement number (JAN)
SH-220469-090-R011-015; and
2. on June 23, 2009, he learned that Management decided to discard a
file of an audit that he was assigned to perform.
In his complaint, Complainant contended that a GS-13 position was
canceled because it was intended for Employee 1, who was later given
the position non-competitively. The Agency dismissed claim 1 for abuse
of the EEO process. 29 C.F.R. § 1614.107(a)(9). It reasoned that
Complainant raised the same claim in prior complaint number NY-09-0413,
which was filed in May 2009.
The record contains an EEO investigative âinterrogatoryâ indicating
the accepted issue was whether Complainant was subjected to discrimination
when on February 12, 2009, the Agency canceled vacancy announcement
SN-220469-09-ROII-015 for the position of Lead Social Insurance Specialist
(AAA) GS-0105-13. It indicated that Complainant alleged the announcement
was canceled so Employee 1 could be placed into the position. In the
unsigned interrogatory, a management official denied that Employee 1 was
placed into the position after the announcement was canceled, asserting
she was promoted to a different permanent position.
The Agency dismissed claim 2 for failure to state a claim. 29 C.F.R. §
1614.107(a)(1). It reasoned that Complainant was not harmed.
CONTENTIONS ON APPEAL
On appeal, Complainant appears to argue that complaint NY-09-0413
does not contain the same issues, but gives no explanation of this.
He writes that he has not filed multiple complaints on the same violation.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.107(a)(1) requires the dismissal
of a complaint that states the same claim that is pending before or
has been decided by the Agency or Commission. Based on our review
of the record, we find claim 1 was in prior complaint NY-09-0413.
While the vacancy announcement number in claim 1 does not precisely
match that in the prior complaint, likely due to a keyboarding error,
Complainantâs contentions regarding Employee 1 show they regard the
same position, and state the same claim. The record, however, does not
support the Agencyâs finding that claim 1 is part of a clear pattern
of misuse of the EEO process for a purpose other than the prevention
and elimination of employment discrimination, the grounds for dismissal
under 29 C.F.R. § 1614.107(a)(9). The record only contained evidence
that Complainant once raised claim 1 in a prior complaint, which does
not meet the above standard.
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 Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll.
Applying the above, we find that claim 2 fails to state a claim because
Complainant was not aggrieved. Also, the Agencyâs action would not
reasonably likely deter EEO activity.
The Agencyâs decision to dismiss Complainantâs 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 partyâs 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).
COMPLAINANTâS 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. âAgencyâ or âdepartmentâ 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 (âRight to File A Civil Actionâ).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 4, 2011
__________________
Date
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4,939 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120100533.txt | 0120100533.txt | TXT | text/plain | 10,339 | Herbert McGee, Jr., Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. | November 7, 2009 | Appeal Number: 0120100533
Background:
The record reveals that prior to February 2007, Complainant worked as a Police Officer at the Agency's VA Outpatient Clinic in Baton Rouge, Louisiana. Due to concerns about Complainant's improper handling of a ticket and issues with a co-worker, management reassigned Complainant in late February, 2007, to the VA Medical Center in New Orleans. Shortly thereafter, Complainant was injured in a motor vehicle accident; he had (temporary) physical restrictions; and he was unable to perform all the duties of his Police Officer position. As a result of the accident, management assigned Complainant to the position of Telecommunications Equipment Operator (Telecommunications Operator) within the Police Service at the Agency's New Orleans facility. In late February, 2008, Complainant asked management to reassign him, as a Telecommunications Operator, to the VA Outpatient Clinic in Baton Rouge, but management denied his request.
Complainant filed an EEO complaint dated May 10, 2008, alleging that the Agency discriminated against him in reprisal for protected EEO activity when: On February 27 2006, Complainant discovered that his reassignment from the VA Medical Center in New Orleans to the VA Outpatient Clinic in Baton Rouge would not be considered.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not respond to the notice, the Agency referred the complaint for the issuance of a final decision on January 9, 2009. Thereafter, Complainant requested a hearing before an AJ. The AJ assigned to the case denied the hearing request on the grounds that the request was untimely filed. Specifically, the AJ noted that the Agency delivered the ROI to Complainant on November 17, 2008, and properly advised him of his right to request a hearing before an AJ with the EEOC New Orleans Field Office within 30 days of receipt of the notice. The AJ noted, however, that Complainant did not file his hearing request until February 5, 2009, which was beyond the applicable limitation period. Thus, the AJ remanded the complaint to the Agency for the issuance a final decision pursuant to 29 C.F.R. § 1614.110(b).
The Agency issued a final decision on October 2, 2009. The Agency concluded that Complainant failed to prove that he was subjected to discrimination as alleged. The Agency noted that Complainant had not engaged in any protected EEO activity prior to the present complaint. The Agency noted that Complainant informed the EEO Counselor that he believed management reassigned him as a result of past grievances he filed. The Agency stated due to Complainant's vague statements about his past grievances and his failure to provide an affidavit in support of his complaint, it was unable to determine whether Complainant's prior grievances constituted protected activity under Title VII. Thus, the Agency determined Complainant failed to establish a prima facie case of discrimination based on reprisal.
However, the Agency stated that assuming Complainant established a prima facie case of discrimination, management articulated legitimate, non-discriminatory reasons for its actions. The Agency noted that in February 2008, Complainant asked management to allow him to switch positions with Co-Worker X, an employee in the Baton Rouge facility, who wanted to work in New Orleans. The Agency stated it denied Complainant's request because Co-Worker X was a Security Guard and not a Telecommunications Operator. The Agency also noted that Complainant engaged in multiple mediations with management and in mid-2008, management reassigned Complainant to Baton Rouge and shortly thereafter, after being cleared by his physician, Complainant began performing his former Police Officer duties at the Baton Rouge facility.
Legal Analysis:
The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
The record reveals that prior to February 2007, Complainant worked as a Police Officer at the Agency's VA Outpatient Clinic in Baton Rouge, Louisiana. Due to concerns about Complainant's improper handling of a ticket and issues with a co-worker, management reassigned Complainant in late February, 2007, to the VA Medical Center in New Orleans. Shortly thereafter, Complainant was injured in a motor vehicle accident; he had (temporary) physical restrictions; and he was unable to perform all the duties of his Police Officer position. As a result of the accident, management assigned Complainant to the position of Telecommunications Equipment Operator (Telecommunications Operator) within the Police Service at the Agency's New Orleans facility. In late February, 2008, Complainant asked management to reassign him, as a Telecommunications Operator, to the VA Outpatient Clinic in Baton Rouge, but management denied his request.
Complainant filed an EEO complaint dated May 10, 2008, alleging that the Agency discriminated against him in reprisal for protected EEO activity when: On February 27 2006, Complainant discovered that his reassignment from the VA Medical Center in New Orleans to the VA Outpatient Clinic in Baton Rouge would not be considered.
At the
Final Decision:
Accordingly, the Agency's final decision finding no discrimination is AFFIRMED. | Herbert McGee, Jr.,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120100533
Hearing No. 461-2009-00051X
Agency No. 200L-0629-2008102147
DECISION
On November 7, 2009, Complainant filed an appeal from the Agency's October 2, 2009, final decision concerning his equal employment opportunity (EEO) complaint alleging 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
The record reveals that prior to February 2007, Complainant worked as a Police Officer at the Agency's VA Outpatient Clinic in Baton Rouge, Louisiana. Due to concerns about Complainant's improper handling of a ticket and issues with a co-worker, management reassigned Complainant in late February, 2007, to the VA Medical Center in New Orleans. Shortly thereafter, Complainant was injured in a motor vehicle accident; he had (temporary) physical restrictions; and he was unable to perform all the duties of his Police Officer position. As a result of the accident, management assigned Complainant to the position of Telecommunications Equipment Operator (Telecommunications Operator) within the Police Service at the Agency's New Orleans facility. In late February, 2008, Complainant asked management to reassign him, as a Telecommunications Operator, to the VA Outpatient Clinic in Baton Rouge, but management denied his request.
Complainant filed an EEO complaint dated May 10, 2008, alleging that the Agency discriminated against him in reprisal for protected EEO activity when: On February 27 2006, Complainant discovered that his reassignment from the VA Medical Center in New Orleans to the VA Outpatient Clinic in Baton Rouge would not be considered.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not respond to the notice, the Agency referred the complaint for the issuance of a final decision on January 9, 2009. Thereafter, Complainant requested a hearing before an AJ. The AJ assigned to the case denied the hearing request on the grounds that the request was untimely filed. Specifically, the AJ noted that the Agency delivered the ROI to Complainant on November 17, 2008, and properly advised him of his right to request a hearing before an AJ with the EEOC New Orleans Field Office within 30 days of receipt of the notice. The AJ noted, however, that Complainant did not file his hearing request until February 5, 2009, which was beyond the applicable limitation period. Thus, the AJ remanded the complaint to the Agency for the issuance a final decision pursuant to 29 C.F.R. § 1614.110(b).
The Agency issued a final decision on October 2, 2009. The Agency concluded that Complainant failed to prove that he was subjected to discrimination as alleged. The Agency noted that Complainant had not engaged in any protected EEO activity prior to the present complaint. The Agency noted that Complainant informed the EEO Counselor that he believed management reassigned him as a result of past grievances he filed. The Agency stated due to Complainant's vague statements about his past grievances and his failure to provide an affidavit in support of his complaint, it was unable to determine whether Complainant's prior grievances constituted protected activity under Title VII. Thus, the Agency determined Complainant failed to establish a prima facie case of discrimination based on reprisal.
However, the Agency stated that assuming Complainant established a prima facie case of discrimination, management articulated legitimate, non-discriminatory reasons for its actions. The Agency noted that in February 2008, Complainant asked management to allow him to switch positions with Co-Worker X, an employee in the Baton Rouge facility, who wanted to work in New Orleans. The Agency stated it denied Complainant's request because Co-Worker X was a Security Guard and not a Telecommunications Operator. The Agency also noted that Complainant engaged in multiple mediations with management and in mid-2008, management reassigned Complainant to Baton Rouge and shortly thereafter, after being cleared by his physician, Complainant began performing his former Police Officer duties at the Baton Rouge facility.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
At the outset, we note Complainant does challenge the AJ's decision to dismiss his hearing request as untimely filed and we find no reason to disturb the AJ's dismissal of Complainant's request for a hearing. Moreover, we note that Complainant does not object to the definition of his complaint as contained in the Agency's final decision and we find the Agency's definition of the complaint was proper. Additionally, we find the record in the present case was adequately developed.
Upon review, we find the Agency articulated legitimate, non-discriminatory reasons for denying Complainant's request to switch positions with Co-Worker X in Baton Rouge. Specifically, the record shows that during the relevant time Co-Worker X worked as a Security Guard and did not perform the same duties as Complainant who at this time worked as a Telecommunications Operator. We find that Complainant failed to show by a preponderance of the evidence that the Agency's explanation for its actions was a pretext for prohibited discrimination.
CONCLUSION
Accordingly, the Agency's final decision finding no discrimination 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
8/4/11
__________________
Date
01-2010-0533
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4,940 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120100414.r.txt | 0120100414.r.txt | TXT | text/plain | 9,619 | Gillman P. Gary, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Capital Metro Area), Agency. | January 5, 2010 | Appeal Number: 0120100414
Background:
Believing that the Agency subjected him to unlawful discrimination,
Complainant contacted an Agency EEO Counselor to initiate the EEO
complaint process. On September 19, 2009, Complainant and the Agency
entered into a settlement agreement (SA) to resolve the matter.
The settlement agreement provided, in pertinent part, that:
(5) "Senior Manager (S1) shall meet with [a named Labor Relations
Manager (LRM)] by Tuesday September 22, 2009, to discuss grievance #
24DTP08 and its status. In the event that the Letter of Warning is
active, it shall be removed by his file by request of S1."
By letter to the Agency on an unknown date, Complainant alleged breach by
submitting to the Agency a copy of the SA in which he wrote immediately
next to paragraph (5) the word, "BREACHED." By doing so, Complainant
alleged that the Agency failed to remove the Letter of Warning (LOW)
from his file.
By letter to the Commission on November 18, 2009, the Agency noted that
Complainant appealed before the Agency had a chance to investigate his
allegations, cure a breach, if any, or issue a final decision.
On January 5, 2010, the Agency issued a final decision. Therein, the
Agency found that during S1's meeting with LRM, S1 discovered that the LOW
referred to in paragraph (5) remained active and could not be removed
because it was part of a separate EEO claim that was still pending.
However, after further discussions with Complainant, the Agency removed
the LOW from his file on December 17, 2009. The Agency stated that
Complainant nonetheless believed the Agency was in breach because too
much time had passed between the time Complainant settled his claims
and the time the LOW was removed.
CONTENTIONS ON APPEAL
In his Notice of Appeal, Complainant attaches a copy of the SA with
original annotations. In this copy, he highlights paragraph (2) with a
yellow highlighter and, in the margin immediately adjacent to paragraph
(2), annotates, "BREACHED." Complainant submitted an additional statement
on September 9, 2010. In his statement, Complainant criticizes the
Agency's handling of the informal complaint that resulted in the SA now
before us. With respect to the SA, Complainant argues that the Agency
"fail[ed] to execute all of the terms in accordance of the settlement
agreement in a timely manner completely" and requests his informal
complaint be reinstated for processing.
Legal Analysis:
the Commission on November 18, 2009, the Agency noted that
Complainant appealed before the Agency had a chance to investigate his
allegations, cure a breach, if any, or issue a final decision.
On January 5, 2010, the Agency issued a final decision. Therein, the
Agency found that during S1's meeting with LRM, S1 discovered that the LOW
referred to in paragraph (5) remained active and could not be removed
because it was part of a separate EEO claim that was still pending.
However, after further discussions with Complainant, the Agency removed
the LOW from his file on December 17, 2009. The Agency stated that
Complainant nonetheless believed the Agency was in breach because too
much time had passed between the time Complainant settled his claims
and the time the LOW was removed.
CONTENTIONS ON APPEAL
In his Notice of Appeal, Complainant attaches a copy of the SA with
original annotations. In this copy, he highlights paragraph (2) with a
yellow highlighter and, in the margin immediately adjacent to paragraph
(2), annotates, "BREACHED." Complainant submitted an additional statement
on September 9, 2010. In his statement, Complainant criticizes the
Agency's handling of the informal complaint that resulted in the SA now
before us. With respect to the SA, Complainant argues that the Agency
"fail[ed] to execute all of the terms in accordance of the settlement
agreement in a timely manner completely" and requests his informal
complaint be reinstated for processing.
ANALYSIS
As a preliminary matter, we note that on appeal, Complainant is claiming
breach regarding provision 2, which is entirely different than the breach
claim that was raised before the Agency. Thus, Complainant argues a
matter not submitted to the EEO Director and addressed by the Agency in
its final decision. Therefore, we will not further address the matter.1
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the Agency, to which ordinary rules
of contract construction apply. See Herrington v. Dep't of Defense.,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (August
23, 1990). In ascertaining the intent of the parties with regard to the
terms of a settlement agreement, the Commission has generally relied on
the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request
No. 05910787 (December 2, 1991). This rule states that if the writing
appears to be plain and unambiguous on its face, its meaning must be
determined from the four corners of the instrument without resort to
extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building
Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case, Complainant alleged the Agency breached provision
5 when it did not timely remove a LOW from his personnel file.
Complainant agreed to the SA on September 19, 2009. The LOW was removed
from Complainant's personnel file on December 17, 2009, a period of
approximately three months.
Here, we find that there is no time period for implementation of provision
(5). Although provision (5) required S1 to meet with LRM by September
22, 2009, the SA did not provide any time limits by which the LOW must
be removed. The Commission has held that a settlement provision
without time periods is generally understood to require compliance
within a reasonable amount of time. See Gomez v. Dep't of the Treasury,
EEOC Request No. 05930921 (February 10, 1994). The Agency implemented
the terms of paragraph (5) within three months, which we find to be a
reasonable period for implementation.
Final Decision:
Accordingly, the Agency's final decision finding no breach of provision 5 of the subject SA is AFFIRMED. | Gillman P. Gary,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120100414
Agency No. 1K-231-0073-09
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the Agency dated January 5, 2010, finding that it
was in compliance with the terms of a September 19, 2009 settlement
agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29
C.F.R. § 1614.405.
BACKGROUND
Believing that the Agency subjected him to unlawful discrimination,
Complainant contacted an Agency EEO Counselor to initiate the EEO
complaint process. On September 19, 2009, Complainant and the Agency
entered into a settlement agreement (SA) to resolve the matter.
The settlement agreement provided, in pertinent part, that:
(5) "Senior Manager (S1) shall meet with [a named Labor Relations
Manager (LRM)] by Tuesday September 22, 2009, to discuss grievance #
24DTP08 and its status. In the event that the Letter of Warning is
active, it shall be removed by his file by request of S1."
By letter to the Agency on an unknown date, Complainant alleged breach by
submitting to the Agency a copy of the SA in which he wrote immediately
next to paragraph (5) the word, "BREACHED." By doing so, Complainant
alleged that the Agency failed to remove the Letter of Warning (LOW)
from his file.
By letter to the Commission on November 18, 2009, the Agency noted that
Complainant appealed before the Agency had a chance to investigate his
allegations, cure a breach, if any, or issue a final decision.
On January 5, 2010, the Agency issued a final decision. Therein, the
Agency found that during S1's meeting with LRM, S1 discovered that the LOW
referred to in paragraph (5) remained active and could not be removed
because it was part of a separate EEO claim that was still pending.
However, after further discussions with Complainant, the Agency removed
the LOW from his file on December 17, 2009. The Agency stated that
Complainant nonetheless believed the Agency was in breach because too
much time had passed between the time Complainant settled his claims
and the time the LOW was removed.
CONTENTIONS ON APPEAL
In his Notice of Appeal, Complainant attaches a copy of the SA with
original annotations. In this copy, he highlights paragraph (2) with a
yellow highlighter and, in the margin immediately adjacent to paragraph
(2), annotates, "BREACHED." Complainant submitted an additional statement
on September 9, 2010. In his statement, Complainant criticizes the
Agency's handling of the informal complaint that resulted in the SA now
before us. With respect to the SA, Complainant argues that the Agency
"fail[ed] to execute all of the terms in accordance of the settlement
agreement in a timely manner completely" and requests his informal
complaint be reinstated for processing.
ANALYSIS
As a preliminary matter, we note that on appeal, Complainant is claiming
breach regarding provision 2, which is entirely different than the breach
claim that was raised before the Agency. Thus, Complainant argues a
matter not submitted to the EEO Director and addressed by the Agency in
its final decision. Therefore, we will not further address the matter.1
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the Agency, to which ordinary rules
of contract construction apply. See Herrington v. Dep't of Defense.,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (August
23, 1990). In ascertaining the intent of the parties with regard to the
terms of a settlement agreement, the Commission has generally relied on
the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request
No. 05910787 (December 2, 1991). This rule states that if the writing
appears to be plain and unambiguous on its face, its meaning must be
determined from the four corners of the instrument without resort to
extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building
Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case, Complainant alleged the Agency breached provision
5 when it did not timely remove a LOW from his personnel file.
Complainant agreed to the SA on September 19, 2009. The LOW was removed
from Complainant's personnel file on December 17, 2009, a period of
approximately three months.
Here, we find that there is no time period for implementation of provision
(5). Although provision (5) required S1 to meet with LRM by September
22, 2009, the SA did not provide any time limits by which the LOW must
be removed. The Commission has held that a settlement provision
without time periods is generally understood to require compliance
within a reasonable amount of time. See Gomez v. Dep't of the Treasury,
EEOC Request No. 05930921 (February 10, 1994). The Agency implemented
the terms of paragraph (5) within three months, which we find to be a
reasonable period for implementation.
CONCLUSION
Accordingly, the Agency's final decision finding no breach of provision
5 of the subject SA 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
April 7, 2011
__________________
Date
1 If Complainant wishes to pursue a breach claim regarding provision
(2), Complainant should direct his allegation to the Agency's EEO Director
in accordance with 29 C.F.R. § 1614.504(a).
??
??
??
??
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4,941 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120100257.r.txt | 0120100257.r.txt | TXT | text/plain | 10,259 | Kelvin L. Troutman, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. | September 14, 2009 | Appeal Number: 0120100257
Background:
During the period at issue, Complainant was employed as a Quality Assurance Specialist, GS-1910-11, at the Agency's Fleet Readiness Center Southeast, Logistics and Industrial Operations Group, Naval Air Station in Jacksonville, Florida.
On August 14, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of race and color when:
on July 8, 2009, he received a Letter of Reprimand dated July 2, 2009 from his first level supervisor in Code 6.4.2.3. for unprofessional conduct that occurred on June 25, 2009.
In its September 14, 2009 final decision, the Agency dismissed Complainant's complaint on the grounds that Complainant raised the same matter in a negotiated grievance process. The Agency determined that Complainant, through the union, filed a grievance concerning the same issue on July 23, 2009, before his EEO complaint was filed on August 14, 2009.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that during his July 27, 2009 initial meeting with an EEO Counselor, the EEO Counselor "acknowledged that she didn't have the experience or the understanding dealing with the unions. It is obvious that I was not properly informed on matters pertaining to the union matters that would negate my right to file with the EEO. The informal request with the union was on 'Just Cause' and not for discrimination."
Legal Analysis:
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 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 instant record contains a response, dated December 3, 2009, to Complainant's grievance which reflects that Complainant filed a grievance concerning the same facts and circumstances as those raised in his EEO complaint. The Commission acknowledges that the Agency has provided a portion of Article 26 of the collective bargaining agreement, entitled "Negotiated Grievance Procedure." However, the record does not include a copy of the express language stating whether the grievance procedure permits claims of discrimination. Clearly, it is the burden of the agency to have evidence or proof in support of its final decision. See Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991).
Final Decision:
Accordingly, the Agency's decision to dismiss Complainant's complaint was improper, and is hereby REVERSED. | Kelvin L. Troutman,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120100257
Agency No. 096588602657
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 14, 2009, 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.
BACKGROUND
During the period at issue, Complainant was employed as a Quality Assurance Specialist, GS-1910-11, at the Agency's Fleet Readiness Center Southeast, Logistics and Industrial Operations Group, Naval Air Station in Jacksonville, Florida.
On August 14, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of race and color when:
on July 8, 2009, he received a Letter of Reprimand dated July 2, 2009 from his first level supervisor in Code 6.4.2.3. for unprofessional conduct that occurred on June 25, 2009.
In its September 14, 2009 final decision, the Agency dismissed Complainant's complaint on the grounds that Complainant raised the same matter in a negotiated grievance process. The Agency determined that Complainant, through the union, filed a grievance concerning the same issue on July 23, 2009, before his EEO complaint was filed on August 14, 2009.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that during his July 27, 2009 initial meeting with an EEO Counselor, the EEO Counselor "acknowledged that she didn't have the experience or the understanding dealing with the unions. It is obvious that I was not properly informed on matters pertaining to the union matters that would negate my right to file with the EEO. The informal request with the union was on 'Just Cause' and not for discrimination."
ANALYSIS AND FINDINGS
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 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 instant record contains a response, dated December 3, 2009, to Complainant's grievance which reflects that Complainant filed a grievance concerning the same facts and circumstances as those raised in his EEO complaint. The Commission acknowledges that the Agency has provided a portion of Article 26 of the collective bargaining agreement, entitled "Negotiated Grievance Procedure." However, the record does not include a copy of the express language stating whether the grievance procedure permits claims of discrimination. Clearly, it is the burden of the agency to have evidence or proof in support of its final decision. See Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991).
Accordingly, the Agency's decision to dismiss Complainant's complaint was improper, and is hereby REVERSED. The complaint is REMANDED to the Agency for further processing in accordance with this decision and the ORDER herein.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 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 (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0610)
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 (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
March 31, 2011
__________________
Date
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4,942 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120100086.txt | 0120100086.txt | TXT | text/plain | 8,610 | Lacy Hearold, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Citizenship and Immigration Services), Agency. | August 31, 2009 | Appeal Number: 0120100086
Complaint Allegations:
In his complaint, complainant alleged that he was subjected to discrimination on the bases of race (Black), sex (male), color (unspecified), age (unspecified), and reprisal for prior protected EEO activity under a statute that was unspecified in the record when: 1. In May 2009, complainant learned that he had not been selected for Permanent Adjudications Officer position to which he had applied in 2007.
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 31, 2009, 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. In his complaint, complainant alleged that he was
subjected to discrimination on the bases of race (Black), sex (male),
color (unspecified), age (unspecified), and reprisal for prior protected
EEO activity under a statute that was unspecified in the record when:
1. In May 2009, complainant learned that he had not been selected for
Permanent Adjudications Officer position to which he had applied in 2007.
The agency dismissed the claim for untimely EEO Counselor contact,
noting that the alleged discriminatory event occurred in September 2007
and complainant did not contact an EEO Counselor until May 26, 2009,
which is beyond the 45-day regulatory limit.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Complainant argues that he did not develop a reasonable suspicion of
the discriminatory act until the spring of 2009. Complainant maintains
that he interviewed for the position of Permanent Adjudication Officer
in August 2007 along with the selectee (S: White, Female) and other
applicants. Complainant further maintains that at the time, both he and
S were temporary or Term Adjudications Officers, and that complainant
scored higher than S did on the list of eligibles. Complainant says that
after he interviewed for the position he never heard anything more about
that particular opening, but that in March of 2008, after reapplying
in September 2007, he was selected as a Permanent Adjudication Officer.
He states that the announcement indicated that he and S had been promoted
at the same time under the same announcement. Complainant maintains
that it was not until May 2009 when he was involved in an unrelated EEO
complaint that he learned, through the discovery process, that S had in
fact been promoted to the Permanent position in September 2007 based on
the August 2007 applications. Therefore, complainant argues, his May 29,
2009 Counselor contact was timely.
The Commission determines that complainant's complaint was properly
dismissed. The Commission has held that complainants must act with due
diligence in the pursuit of their claims or the doctrine of latches
may be applied. The doctrine of latches is an equitable remedy under
which an individual's failure to diligently pursue his actions could bar
his claim. See O'Dell v. Department of Health and Human Services, EEOC
Request No. 05901130 (December 27, 1990). Given the passage of over one
and a half years since the alleged discriminatory act, the Commission
finds that the doctrine of latches applicable. On appeal, complainant
has presented no persuasive arguments or evidence warranting an extension
of the time limit for initiating EEO Counselor contact.
Final Decision:
Accordingly, the agency's final decision dismissing complainant's complaint is AFFIRMED. | Lacy Hearold,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120100086
Agency No. HS09CIS006364
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 31, 2009, 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. In his complaint, complainant alleged that he was
subjected to discrimination on the bases of race (Black), sex (male),
color (unspecified), age (unspecified), and reprisal for prior protected
EEO activity under a statute that was unspecified in the record when:
1. In May 2009, complainant learned that he had not been selected for
Permanent Adjudications Officer position to which he had applied in 2007.
The agency dismissed the claim for untimely EEO Counselor contact,
noting that the alleged discriminatory event occurred in September 2007
and complainant did not contact an EEO Counselor until May 26, 2009,
which is beyond the 45-day regulatory limit.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Complainant argues that he did not develop a reasonable suspicion of
the discriminatory act until the spring of 2009. Complainant maintains
that he interviewed for the position of Permanent Adjudication Officer
in August 2007 along with the selectee (S: White, Female) and other
applicants. Complainant further maintains that at the time, both he and
S were temporary or Term Adjudications Officers, and that complainant
scored higher than S did on the list of eligibles. Complainant says that
after he interviewed for the position he never heard anything more about
that particular opening, but that in March of 2008, after reapplying
in September 2007, he was selected as a Permanent Adjudication Officer.
He states that the announcement indicated that he and S had been promoted
at the same time under the same announcement. Complainant maintains
that it was not until May 2009 when he was involved in an unrelated EEO
complaint that he learned, through the discovery process, that S had in
fact been promoted to the Permanent position in September 2007 based on
the August 2007 applications. Therefore, complainant argues, his May 29,
2009 Counselor contact was timely.
The Commission determines that complainant's complaint was properly
dismissed. The Commission has held that complainants must act with due
diligence in the pursuit of their claims or the doctrine of latches
may be applied. The doctrine of latches is an equitable remedy under
which an individual's failure to diligently pursue his actions could bar
his claim. See O'Dell v. Department of Health and Human Services, EEOC
Request No. 05901130 (December 27, 1990). Given the passage of over one
and a half years since the alleged discriminatory act, the Commission
finds that the doctrine of latches applicable. 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 final decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
March 25, 2010
__________________
Date
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"29 C.F.R. § 1614.405",
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4,943 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120100058.txt | 0120100058.txt | TXT | text/plain | 10,861 | Linda L. Lundgren, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency. | August 14, 2009 | Appeal Number: 0120100058
Legal Analysis:
THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409. | Linda L. Lundgren,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120100058
Agency No. 4E8900054091
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated August 14, 2009, finding that it was
in compliance with the terms of the June 16, 2009 settlement agreement
into which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. §
1614.504(b); and 29 C.F.R. § 1614.405.
Complainant contacted an EEO counselor and her case was assigned agency
number 4E890005409. Prior to filing a formal complaint, the agency and
complainant entered into a settlement agreement which closed the case.
The settlement agreement provided, in pertinent part, that:
(1) ...management and counselee will agree that job performance and
attention to individual duties will be a priority in the unit;
(2) management will make every effort to eliminate animosity and
disparaging remarks, and employees will be directed that inappropriate
comments about other employees are unacceptable and will cease; and
(3) management will make every effort to protect counselee's rights
to equal treatment.
By email on June 23, 2009, which was followed up with a detailed letter
to the agency dated July 15, 2009, complainant alleged that the agency
breached the settlement agreement. Complainant contended that that
the agency breached all three terms of the settlement agreement, and
gave numerous alleged examples thereof which occurred from approximately
June 16, 2009 through July 15, 2009. She wrote that she wanted her case
reinstated.
The record contains an affidavit by a manager stating that the agency
complied with term 2 of the settlement agreement. The manager explained
that management had discussions with offending employees each time an
incident was brought to its attention, but complainant would not be
aware of this since the discussions are private.
In its August 14, 2009 FAD, the agency concluded that it complied with
term 2 of the settlement agreement. It found that complainant's other
allegations of breach allege subsequent acts of discrimination, and
hence in accordance with 29 C.F.R. § 1614.504(c), will be processed as
a separate complaint. The agency specified in the FAD that on August
10, 2010, complainant initiated an informal EEO complaint 4E890008809
in which she alleged retaliation and listed issues similar to those in
her breach allegations, and stated her remaining allegations would be
processed with that case.
On appeal, complainant writes that she previously indicated she wanted
her case to be reinstated, and her workplace environment continues to
be hostile. In opposition to the appeal, the agency argues that the
FAD should be affirmed.
When a settlement agreement lacks adequate consideration, it is
unenforceable. See Collins v. United States Postal Service, EEOC
Request No. 05900082 (April 26, 1990) (a settlement agreement that was
not based upon adequate consideration was unenforceable). Generally,
the adequacy or fairness of the consideration in a settlement agreement
is not at issue, as long as some legal detriment is incurred as part
of the bargain. However, when one of the contracting parties incurs no
legal detriment, the settlement agreement will be set aside for lack
of consideration. See MacNair v. United States Postal Service, EEOC
Appeal No. 01964653 (July 1, 1997).
Also, a settlement agreement that is too vague to enforce is invalid.
See Bibb-Merritt v. United States Postal Service, EEOC Appeal
No. 0120072689 (November 13, 2009) (settlement agreement terms that
(a) management encourages communication among carriers and with them
and management as long as it is done within appropriate time frames,
(b) in the spirit of working together, management will address issues
prior to taking disciplinary actions, and (c) all parties will treat
each others with dignity and respect too vague to enforce).
Applying the above legal principles, we find that the settlement
agreement is invalid due to lack of consideration and for being too vague
to enforce. Nothing was promised beyond what the agency is already
obligated to do, i.e., there was no legal detriment by the agency.
Further, all three terms of the settlement agreement are too vague for
a determination to be made on breach.
Accordingly, the settlement agreement is invalid, and is set aside.
Further, the agency shall treat complainant's June 23, 2009 email and
connected July 15, 2009 letter as a request for EEO counseling, and
process it under 29 C.F.R. Part 1614.
ORDER
The agency is ordered to set aside the settlement agreement dated June
16, 2009, and reinstate case number 4E890005409 from the point processing
ceased and process it under 29 C.F.R. Part 1614. The agency shall treat
shall complainant's June 23, 2009 email and connected July 15, 2009 letter
as a request for EEO counseling, and process it under 29 C.F.R. Part 1614.
In separate letters, within 30 calendar days of the date this decision
becomes final, the agency shall acknowledge the reinstatement of case
number 4E890005409, and complainant's request for EEO counseling.
A copy of the agency's letters of acknowledgment to complainant must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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 18, 2010
__________________
Date
1 On appeal, complainant indicated that her agency case number was
4E890008809. The final agency decision she appealed, however, is agency
case number 4E890005409.
??
??
??
??
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"MacNair v. United States Postal Service, EEOC Appeal No. 01964653 (July 1, 1997)",
"Merritt v. United States Postal Service, EEOC Appeal No. 0120072689 (November 13, 2009)",
"29 C.F.R. § 1614.402",
"29 C.F.R. § 1614.504(... | [
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4,944 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120093678.txt | 0120093678.txt | TXT | text/plain | 10,450 | Yolanda D. Strickland, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency. | August 7, 2009 | Appeal Number: 0120093678
Complaint Allegations:
In her complaint, complainant alleged that she was subjected to discrimination on the basis of reprisal for prior protected EEO activity under Title VII when: 1. On May 6, 2009, complainant's supervisor (RMO) shoved open a door with extreme force with intention to cause bodily harm to complainant.
Legal Analysis:
The Commission notes that in Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor
Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is
actionable if it is sufficiently severe or pervasive to alter the
conditions of the complainant's employment. The Court explained
that an "objectively hostile or abusive work environment [is created
when] a reasonable person would find [it] hostile or abusive:" and the
complainant subjectively perceives it as such. Harris, supra at 21-22.
Thus, not all claims of harassment are actionable. Where a complaint
does not challenge an agency action or inaction regarding a specific
term, condition or privilege of employment, a claim of harassment is
actionable only if, allegedly, the harassment to which the complainant
has been subjected was sufficiently severe or pervasive to alter the
conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
Following a review of the record, the Commission finds that, under the
facts of this case, complainant's allegation states a viable claim of
retaliatory harassment. While RMO told the EEO Counselor that he was
unaware that complainant was on the other side of the door, such an
argument goes to the merits of the complaint and can be proffered during
the investigation. Complainant's allegation is that RMO deliberately
tried to inflict physical violence on her in retaliation for her prior
EEO activity and the Commission is not prepared to find that such actions,
as a matter of law, always constitute "common workplace occurrences."1
We therefore find that complainant has stated a claim of retaliatory
harassment and we REVERSE the FAD and REMAND the matter to the agency
for processing in accordance with the Order below.
ORDER (E0408)
The agency is ordered to process the remanded retaliatory harassment
claim in accordance with 29 C.F.R. § 1614.108 et seq. The agency
shall acknowledge to the complainant that it has received the remanded
claim 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 (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409. | Yolanda D. Strickland,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120093678
Agency No. 1H303003109
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 7, 2009, dismissing her 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.
In her complaint, complainant alleged that she was subjected to
discrimination on the basis of reprisal for prior protected EEO activity
under Title VII when:
1. On May 6, 2009, complainant's supervisor (RMO) shoved open a door
with extreme force with intention to cause bodily harm to complainant.
The agency dismissed the claim for failure to state a claim, calling
the incident a "common workplace occurrence."
The Commission notes that in Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor
Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is
actionable if it is sufficiently severe or pervasive to alter the
conditions of the complainant's employment. The Court explained
that an "objectively hostile or abusive work environment [is created
when] a reasonable person would find [it] hostile or abusive:" and the
complainant subjectively perceives it as such. Harris, supra at 21-22.
Thus, not all claims of harassment are actionable. Where a complaint
does not challenge an agency action or inaction regarding a specific
term, condition or privilege of employment, a claim of harassment is
actionable only if, allegedly, the harassment to which the complainant
has been subjected was sufficiently severe or pervasive to alter the
conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
Following a review of the record, the Commission finds that, under the
facts of this case, complainant's allegation states a viable claim of
retaliatory harassment. While RMO told the EEO Counselor that he was
unaware that complainant was on the other side of the door, such an
argument goes to the merits of the complaint and can be proffered during
the investigation. Complainant's allegation is that RMO deliberately
tried to inflict physical violence on her in retaliation for her prior
EEO activity and the Commission is not prepared to find that such actions,
as a matter of law, always constitute "common workplace occurrences."1
We therefore find that complainant has stated a claim of retaliatory
harassment and we REVERSE the FAD and REMAND the matter to the agency
for processing in accordance with the Order below.
ORDER (E0408)
The agency is ordered to process the remanded retaliatory harassment
claim in accordance with 29 C.F.R. § 1614.108 et seq. The agency
shall acknowledge to the complainant that it has received the remanded
claim 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 (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (R0408)
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 (Z1008)
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 24, 2010
__________________
Date
1 We note that complainant told the EEO Counselor that, "based on
a previous EEO resolution", RMO was prohibited from being in the
same facility as her, and in her Formal complaint, she asks that the
"previous EEOC resolution" be adhered to. Furthermore, on appeal,
complainant has submitted a copy of the settlement agreement signed
in May 2004. It is not clear from the record whether the agency has
addressed, and is currently processing, what appears to additionally
be complainant's breach claim. The agency, if it has not already done
so, should process the allegation of breach of the May 2004 settlement
agreement in accordance with 29 C.F.R. § 1614.504.
??
??
??
??
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4,945 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120093580.txt | 0120093580.txt | TXT | text/plain | 10,479 | Jacqueline L. Haynes, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency. | July 20, 2009 | Appeal Number: 0120093580
Complaint Allegations:
In her complaint, complainant alleged that she was subjected to hostile workplace discrimination on the bases of race (Black) and reprisal for prior protected EEO activity under Title VII with respect to the following: 1) Complainant heard her first line supervisor tell a fellow co-worker, "If you get any Blacker, you'll have to sit at the back of the bus." 2) When awards are issued, only White employees are given quality step increases. 3) Senior Black employees are not allowed to conduct training, while White employees with limited work experience are allowed to conduct training. 4) Black employees receive a maximum performance rating of three, while White employees receive a maximum performance rating of five. 5) Although complainant has a bachelor's degree, at the discretion of the selecting official she was hired as a GS-04, despite the fact that the job announcement stated any selectee with a bachelor's degree automatically qualified for a GS-5. In its final decision, the agency stated that all of complainant's claims, detailed above, preceded her subsequent termination on August 12, 2008, but complainant did not initiate contact with an EEO Counselor until May 1, 2009, which is well beyond the forty-five (45) day limitation period.1 The agency also stated that in complainant's prior discrimination complaint, Formal Complaint ATL-09-0854, complainant challenged her termination and included the same background and/or generalized information regarding workplace matters as alleged claims in the current complaint, ATL-09-0502. The agency further stated that it sent an acceptance letter, dated February 4, 2009, clearly providing complainant an opportunity to clarify her previous claims. However,
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 20, 2009, dismissing her 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.
Legal Analysis:
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely
EEO Counselor contact.
In her complaint, complainant alleged that she was subjected to hostile
workplace discrimination on the bases of race (Black) and reprisal
for prior protected EEO activity under Title VII with respect to the
following: 1) Complainant heard her first line supervisor tell a fellow
co-worker, "If you get any Blacker, you'll have to sit at the back of
the bus." 2) When awards are issued, only White employees are given
quality step increases. 3) Senior Black employees are not allowed to
conduct training, while White employees with limited work experience
are allowed to conduct training. 4) Black employees receive a maximum
performance rating of three, while White employees receive a maximum
performance rating of five. 5) Although complainant has a bachelor's
degree, at the discretion of the selecting official she was hired as a
GS-04, despite the fact that the job announcement stated any selectee
with a bachelor's degree automatically qualified for a GS-5.
In its final decision, the agency stated that all of complainant's
claims, detailed above, preceded her subsequent termination on
August 12, 2008, but complainant did not initiate contact with an EEO
Counselor until May 1, 2009, which is well beyond the forty-five (45)
day limitation period.1 The agency also stated that in complainant's
prior discrimination complaint, Formal Complaint ATL-09-0854, complainant
challenged her termination and included the same background and/or
generalized information regarding workplace matters as alleged claims
in the current complaint, ATL-09-0502. The agency further stated that
it sent an acceptance letter, dated February 4, 2009, clearly providing
complainant an opportunity to clarify her previous claims. However,
the agency noted that complainant failed to respond.
On appeal, complainant claims that the agency had sought clarification
in her earlier claim involving her termination, but that various, agency
EEO offices were uncertain as to whether her additional claims would be
investigated as background for the termination claim or as a separate
complaint. Complainant maintains that the agency failed to notify her
of how it would proceed, that is, how it would investigate/resolve all
of her claims outlined in both formal complaints.
.
Because the agency acknowledges and the record reflects that the issues
in this subject appeal were presented during pre-complaint processing
of complainant's initial complaint, ATL-09-0854, we find that that it
is appropriate for the agency to investigate these unresolved claims.
Further, it is evident from the record presented on appeal, that the
agency mishandled the processing of these claims. Therefore, the agency's
dismissal of complainant's complaint for untimely EEO Counselor contact
was improper.
Final Decision:
Accordingly, the agency's final decision dismissing complainant's complaint is reversed. | Jacqueline L. Haynes,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120093580
Agency No. ATL090502SSA
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 20, 2009, dismissing her 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.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely
EEO Counselor contact.
In her complaint, complainant alleged that she was subjected to hostile
workplace discrimination on the bases of race (Black) and reprisal
for prior protected EEO activity under Title VII with respect to the
following: 1) Complainant heard her first line supervisor tell a fellow
co-worker, "If you get any Blacker, you'll have to sit at the back of
the bus." 2) When awards are issued, only White employees are given
quality step increases. 3) Senior Black employees are not allowed to
conduct training, while White employees with limited work experience
are allowed to conduct training. 4) Black employees receive a maximum
performance rating of three, while White employees receive a maximum
performance rating of five. 5) Although complainant has a bachelor's
degree, at the discretion of the selecting official she was hired as a
GS-04, despite the fact that the job announcement stated any selectee
with a bachelor's degree automatically qualified for a GS-5.
In its final decision, the agency stated that all of complainant's
claims, detailed above, preceded her subsequent termination on
August 12, 2008, but complainant did not initiate contact with an EEO
Counselor until May 1, 2009, which is well beyond the forty-five (45)
day limitation period.1 The agency also stated that in complainant's
prior discrimination complaint, Formal Complaint ATL-09-0854, complainant
challenged her termination and included the same background and/or
generalized information regarding workplace matters as alleged claims
in the current complaint, ATL-09-0502. The agency further stated that
it sent an acceptance letter, dated February 4, 2009, clearly providing
complainant an opportunity to clarify her previous claims. However,
the agency noted that complainant failed to respond.
On appeal, complainant claims that the agency had sought clarification
in her earlier claim involving her termination, but that various, agency
EEO offices were uncertain as to whether her additional claims would be
investigated as background for the termination claim or as a separate
complaint. Complainant maintains that the agency failed to notify her
of how it would proceed, that is, how it would investigate/resolve all
of her claims outlined in both formal complaints.
.
Because the agency acknowledges and the record reflects that the issues
in this subject appeal were presented during pre-complaint processing
of complainant's initial complaint, ATL-09-0854, we find that that it
is appropriate for the agency to investigate these unresolved claims.
Further, it is evident from the record presented on appeal, that the
agency mishandled the processing of these claims. Therefore, the agency's
dismissal of complainant's complaint for untimely EEO Counselor contact
was improper.
Accordingly, the agency's final decision dismissing complainant's
complaint is reversed. The complaint is hereby remanded to the agency for
further processing in accordance with this decision and the Order below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108.2 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 (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (R0408)
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 (Z1008)
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:
February 4, 2010
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date
1 The record discloses that complainant was terminated for falsely
presenting herself as a representative of the Macon ODAR Social Security
Administration entitled to receive medical records in connection with
a disability case.
2 If possible, the agency is advised to process these remanded claims
with complainant's initial complaint, ATL-09-0854.
??
??
??
??
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"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.108.2",
"29 C.F.R. § 1614.503(a)",
"29 C.F.R. § 1614.503(g)",
"29 C.F.R. § 1614.409",
"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.604",
"29 C.F.R. § 1614.604(c)",
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4,946 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120093330.txt | 0120093330.txt | TXT | text/plain | 10,116 | Tonya Titsworth, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. | June 30, 2009 | Appeal Number: 0120093330
Case Facts:
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 30, 2009, finding that it was in
compliance with the terms of the October 15, 2008 settlement agreement
into which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. §
1614.504(b); and 29 C.F.R. § 1614.405.
The settlement agreement provided, in pertinent part, that:
[The agency agrees] to offer priority consideration on a one time
basis for a position [complainant] identifies for which she meets basic
qualifications. Complainant will contact [one of two named officials]
in Human Resources when she identifies the position for which she would
like the priority consideration. [The Human Resources Officials] will
meet with complainant to assist her with the application for the position
prior to interviewing with the selecting official.
By letter to the agency dated June 2, 2009, complainant alleged that she
had been misled by the Mediator. Complainant believed that the agreement
allowed a one-time offer in which she could select a position and she
would be the only person interviewed for the position. Complainant
indicated that the Mediator provided her with this explanation. She later
learned that this was not the case and asserts she would never have
signed the agreement if she had not been misled.
In its June 30, 2009 FAD, the agency concluded that complainant failed to
contact the agency regarding the breach in a timely manner. The agency
noted that complainant contacted the EEO Counselor in October 2008,
concerned about the terms of the settlement agreement. However, the
agency asserted that complainant did not contact the agency about this
particular issue until June 2, 2009. As such, the agency determined that
complainant failed to contact the agency in writing within 30 days of
the alleged misleading statements by the Mediator. Further, the agency
noted that complainant failed to establish that she was deceived by the
agency during mediation. The Mediator indicated to the agency that he
properly explained the priority consideration to complainant. He said he
indicated that complainant's application would be the first one sent to
the selecting official, but there was no guarantee that complainant would
receive the job. Further, the agency indicated that complainant failed
to show that she signed the settlement agreement under duress. Therefore,
the agency determined not to set aside the settlement agreement.
Complainant appealed. Complainant indicated that she signed the agreement
based on the understanding that she had a one-time opportunity to pick
a job for which she met the minimum qualifications and that she would
be the only one interviewing for that job. Complainant stated that she
believed this based on the Mediator. Complainant indicated that the
day after she signed the agreement she contacted the EEO Counselor who
told her that she had 72 hours to revoke the settlement agreement and to
contact the Mediator. Complainant contacted the Mediator who explained
"priority consideration" to her. Some seven months later, complainant
indicated that the EEO Counselor said to her, "Oh! By the way, [w]hat
you think you signed you did not!" At that point, complainant contacted
the agency in writing about her concern.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules of
contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case, we find that complainant was not timely in contacting
the agency regarding her concern. Complainant stated that she contacted
the EEO Counselor the day after the settlement agreement because of her
concern about the priority consideration. Complainant indicated that the
counselor referred her to the Mediator, who she spoke with. However, she
stated that it was in June 2009 when she learned the correct meaning of
"priority consideration." This timing is rebutted, however by a survey
completed by complainant and dated November 17, 2008, in which she
stated, "I was deceived, I thought I that I had resolved my individual
concern only to find I'm back in the same position I was 5 years ago."
The record indicates that complainant had concerns over the settlement
agreement from the time she initially signed the document in October 2008.
However, she did not revoke the agreement which would have been permitted
for several days following the execution of the settlement agreement.
Despite her expressed belief in November 2008 that the Mediator and
EEO Counselor had deceived her, complainant did not raise the matter in
writing as a breach claim until June 2009, nearly seven months later.
Based on the totality of these circumstances, we find that complainant
has not shown that she contacted the agency in a timely manner regarding
the settlement agreement.
Final Decision:
Accordingly, we decline to consider complainant's breach claim and the agency's determination finding no breach of the settlement agreement is affirmed. | Tonya Titsworth,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093330
Agency No. 200P05932008104128
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 30, 2009, finding that it was in
compliance with the terms of the October 15, 2008 settlement agreement
into which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. §
1614.504(b); and 29 C.F.R. § 1614.405.
The settlement agreement provided, in pertinent part, that:
[The agency agrees] to offer priority consideration on a one time
basis for a position [complainant] identifies for which she meets basic
qualifications. Complainant will contact [one of two named officials]
in Human Resources when she identifies the position for which she would
like the priority consideration. [The Human Resources Officials] will
meet with complainant to assist her with the application for the position
prior to interviewing with the selecting official.
By letter to the agency dated June 2, 2009, complainant alleged that she
had been misled by the Mediator. Complainant believed that the agreement
allowed a one-time offer in which she could select a position and she
would be the only person interviewed for the position. Complainant
indicated that the Mediator provided her with this explanation. She later
learned that this was not the case and asserts she would never have
signed the agreement if she had not been misled.
In its June 30, 2009 FAD, the agency concluded that complainant failed to
contact the agency regarding the breach in a timely manner. The agency
noted that complainant contacted the EEO Counselor in October 2008,
concerned about the terms of the settlement agreement. However, the
agency asserted that complainant did not contact the agency about this
particular issue until June 2, 2009. As such, the agency determined that
complainant failed to contact the agency in writing within 30 days of
the alleged misleading statements by the Mediator. Further, the agency
noted that complainant failed to establish that she was deceived by the
agency during mediation. The Mediator indicated to the agency that he
properly explained the priority consideration to complainant. He said he
indicated that complainant's application would be the first one sent to
the selecting official, but there was no guarantee that complainant would
receive the job. Further, the agency indicated that complainant failed
to show that she signed the settlement agreement under duress. Therefore,
the agency determined not to set aside the settlement agreement.
Complainant appealed. Complainant indicated that she signed the agreement
based on the understanding that she had a one-time opportunity to pick
a job for which she met the minimum qualifications and that she would
be the only one interviewing for that job. Complainant stated that she
believed this based on the Mediator. Complainant indicated that the
day after she signed the agreement she contacted the EEO Counselor who
told her that she had 72 hours to revoke the settlement agreement and to
contact the Mediator. Complainant contacted the Mediator who explained
"priority consideration" to her. Some seven months later, complainant
indicated that the EEO Counselor said to her, "Oh! By the way, [w]hat
you think you signed you did not!" At that point, complainant contacted
the agency in writing about her concern.
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules of
contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case, we find that complainant was not timely in contacting
the agency regarding her concern. Complainant stated that she contacted
the EEO Counselor the day after the settlement agreement because of her
concern about the priority consideration. Complainant indicated that the
counselor referred her to the Mediator, who she spoke with. However, she
stated that it was in June 2009 when she learned the correct meaning of
"priority consideration." This timing is rebutted, however by a survey
completed by complainant and dated November 17, 2008, in which she
stated, "I was deceived, I thought I that I had resolved my individual
concern only to find I'm back in the same position I was 5 years ago."
The record indicates that complainant had concerns over the settlement
agreement from the time she initially signed the document in October 2008.
However, she did not revoke the agreement which would have been permitted
for several days following the execution of the settlement agreement.
Despite her expressed belief in November 2008 that the Mediator and
EEO Counselor had deceived her, complainant did not raise the matter in
writing as a breach claim until June 2009, nearly seven months later.
Based on the totality of these circumstances, we find that complainant
has not shown that she contacted the agency in a timely manner regarding
the settlement agreement.
Accordingly, we decline to consider complainant's breach claim and the
agency's determination finding no breach of the settlement agreement is
affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
November 17, 2009
__________________
Date
***Appeal number TX***
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4,947 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120093322.txt | 0120093322.txt | TXT | text/plain | 8,378 | Joseph J. Mulvaney, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency. | November 27, 2007 | Appeal Number: 0120093322
Background:
In a complaint dated September 3, 2009, Complainant alleged that the
Agency subjected him to discrimination in reprisal for prior protected
EEO activity when:
1. On July 21, 2007, his supervisor observed him as he worked;
2. On August 25 and September 1, 2007, his supervisor stared at him and
followed him into a restricted area;
3. On September 7, 2007, when he walked off the main floor to go to the
main lobby to mail his EEO packet, a manager watched him go through the
door; two minutes later, another manager came out of the office area
and walked past Complainant as he stood in line;
4. After he handed his EEO packet to the window clerk, the Customer
Service Supervisor came from the back area and took the envelope from
the clerk and looked at the address on the packet; and,
5. With all the supervisors coming together at one place, it looked to
be an ambush situation, with him being the main target.
Legal Analysis:
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
In a complaint dated September 3, 2009, Complainant alleged that the
Agency subjected him to discrimination in reprisal for prior protected
EEO activity when:
1. On July 21, 2007, his supervisor observed him as he worked;
2. On August 25 and September 1, 2007, his supervisor stared at him and
followed him into a restricted area;
3. On September 7, 2007, when he walked off the main floor to go to the
main lobby to mail his EEO packet, a manager watched him go through the
door; two minutes later, another manager came out of the office area
and walked past Complainant as he stood in line;
4. After he handed his EEO packet to the window clerk, the Customer
Service Supervisor came from the back area and took the envelope from
the clerk and looked at the address on the packet; and,
5. With all the supervisors coming together at one place, it looked to
be an ambush situation, with him being the main target.
ANALYSIS AND FINDINGS
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).
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims,
when considered together and assumed to be true, were sufficient
to state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999).
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions that can be challenged are not restricted to those
which affect a term, condition, or privilege of employment. See Burlington
Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). Rather, a
Complainant is protected from any discrimination that is reasonably likely
to deter protected EEO activity. See EEOC Compliance Manual Section 8,
"Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll,
supra.
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995).
Upon review, we find that the actions complained of, assuming that they
are true, are neither sufficiently severe nor pervasive to create a
discriminatory hostile or abusive working environment. We further find
that the alleged activity was not reasonably likely to deter protected
EEO activity. | Joseph J. Mulvaney,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120093322
Agency No. 1G784001307
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated November 27, 2007, dismissing his complaint of unlawful
employment discrimination. 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
In a complaint dated September 3, 2009, Complainant alleged that the
Agency subjected him to discrimination in reprisal for prior protected
EEO activity when:
1. On July 21, 2007, his supervisor observed him as he worked;
2. On August 25 and September 1, 2007, his supervisor stared at him and
followed him into a restricted area;
3. On September 7, 2007, when he walked off the main floor to go to the
main lobby to mail his EEO packet, a manager watched him go through the
door; two minutes later, another manager came out of the office area
and walked past Complainant as he stood in line;
4. After he handed his EEO packet to the window clerk, the Customer
Service Supervisor came from the back area and took the envelope from
the clerk and looked at the address on the packet; and,
5. With all the supervisors coming together at one place, it looked to
be an ambush situation, with him being the main target.
ANALYSIS AND FINDINGS
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).
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims,
when considered together and assumed to be true, were sufficient
to state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999).
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions that can be challenged are not restricted to those
which affect a term, condition, or privilege of employment. See Burlington
Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). Rather, a
Complainant is protected from any discrimination that is reasonably likely
to deter protected EEO activity. See EEOC Compliance Manual Section 8,
"Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll,
supra.
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995).
Upon review, we find that the actions complained of, assuming that they
are true, are neither sufficiently severe nor pervasive to create a
discriminatory hostile or abusive working environment. We further find
that the alleged activity was not reasonably likely to deter protected
EEO activity.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing
Complainant's complaint.
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
____7/2/10______________
Date
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"Routson v. National Aeronautics and Space Administration, EEOC Request No. 05970388 (February 26, 1999)",
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4,948 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120093123.txt | 0120093123.txt | TXT | text/plain | 10,936 | Vann Jarrett, III, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency. | June 17, 2009 | Appeal Number: 0120093123
Case Facts:
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 17, 2009, finding that it was in
compliance with the terms of the February 9, 2009 settlement agreement
into which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. §
1614.504(b); and 29 C.F.R. § 1614.405.
The settlement agreement provided, in pertinent part, that:
(1) for ninety days counselee will be supervised on a day to day
basis by the building supervisor V.R. The current manager/supervisor
T.K. will still be his contractual supervisor for purposes as defined
in the contract, and
(2) this...will be in effect for 90 days and will be evaluated with
the assistance of Labor Relations....
By one undated statement and another dated May 4, 2009, complainant
alleged that the agency breached the settlement agreement. Specifically,
complainant, a labor/custodian, alleged that on April 23, 2009, supervisor
T.K. told him two men's restroom stall doors were locked, to unlock
them, and to clean the toilets. Complainant also alleged that on April
30, 2009, supervisor T.K. told him he needed to be in his work area.
Complainant wrote that he went to supervisor T.K's office with a shop
steward and tried to inform her of the settlement agreement, and the
supervisor reacted with anger and followed him and shouted at him when
he left her office.
In its June 17, 2009 FAD, the agency concluded that it did not breach the
settlement agreement. According to agency, supervisor T.K. stated that
she did not specifically recall the alleged April 23, 2009, incident,
but since complainant was assigned to the men's restroom that day
the alleged instruction would make sense. According to the agency,
supervisor T.K. stated she reminded complainant that it was past time
for him to be out of the custodial supply closet and in his work area.
The agency found in the FAD that while supervisor T.K. provided directions
to complainant on two occasions during the period she was not serving as
his primary supervisor, this did not violate the settlement agreement.
It found that it was management's responsibility to ensure employees
are using their time in the best interest of the agency, that it is not
unusual for a supervisor other than the primary supervisor to issue
directions to an employee not performing their duties, and under the
settlement supervisor T.K. was still complainant's contractual supervisor.
In finding no breach, the agency reasoned that while supervisor T.K. gave
complainant directions on two isolated occasions, she did not serve as
his primary supervisor during the 90 day time-frame in the settlement
agreement, and hence the agency complied with the settlement agreement.
On appeal, complainant argues that the issue of his supervisor creating
a hostile work environment was not addressed, and she is retaliating
against him for filing prior EEO complaints. He specifically raises
the April 30, 2009, incident of the supervisor allegedly following and
screaming at him, as well as other alleged acts of reprisal.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules of
contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case we find, for the same reasons in the FAD, that the
agency did not breach the settlement agreement. However, complainant's
claim of retaliatory hostile work environment should be treated as a
request for counseling on a discrimination claim. On remand, the agency
shall treat the notice of breach, and any related follow up contacts with
the EEO office as a request for EEO counseling, and counsel complainant
and process the matter in accordance with 29 C.F.R. § 1614.105(b)(1)
et seq.
ORDER
The agency shall treat the notice of breach, and any related follow
up contacts with the EEO office, as a request for EEO counseling, and
counsel complainant and process the matter in accordance with 29 C.F.R. §
1614.105(b)(1) et seq. The agency shall acknowledge to the complainant
that it has received his request for counseling within thirty (30)
calendar days of the date this decision becomes final.
A copy of the agency's letter of acknowledgment to complainant must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409. | Vann Jarrett, III,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120093123
Agency No. 1K221000509
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 17, 2009, finding that it was in
compliance with the terms of the February 9, 2009 settlement agreement
into which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. §
1614.504(b); and 29 C.F.R. § 1614.405.
The settlement agreement provided, in pertinent part, that:
(1) for ninety days counselee will be supervised on a day to day
basis by the building supervisor V.R. The current manager/supervisor
T.K. will still be his contractual supervisor for purposes as defined
in the contract, and
(2) this...will be in effect for 90 days and will be evaluated with
the assistance of Labor Relations....
By one undated statement and another dated May 4, 2009, complainant
alleged that the agency breached the settlement agreement. Specifically,
complainant, a labor/custodian, alleged that on April 23, 2009, supervisor
T.K. told him two men's restroom stall doors were locked, to unlock
them, and to clean the toilets. Complainant also alleged that on April
30, 2009, supervisor T.K. told him he needed to be in his work area.
Complainant wrote that he went to supervisor T.K's office with a shop
steward and tried to inform her of the settlement agreement, and the
supervisor reacted with anger and followed him and shouted at him when
he left her office.
In its June 17, 2009 FAD, the agency concluded that it did not breach the
settlement agreement. According to agency, supervisor T.K. stated that
she did not specifically recall the alleged April 23, 2009, incident,
but since complainant was assigned to the men's restroom that day
the alleged instruction would make sense. According to the agency,
supervisor T.K. stated she reminded complainant that it was past time
for him to be out of the custodial supply closet and in his work area.
The agency found in the FAD that while supervisor T.K. provided directions
to complainant on two occasions during the period she was not serving as
his primary supervisor, this did not violate the settlement agreement.
It found that it was management's responsibility to ensure employees
are using their time in the best interest of the agency, that it is not
unusual for a supervisor other than the primary supervisor to issue
directions to an employee not performing their duties, and under the
settlement supervisor T.K. was still complainant's contractual supervisor.
In finding no breach, the agency reasoned that while supervisor T.K. gave
complainant directions on two isolated occasions, she did not serve as
his primary supervisor during the 90 day time-frame in the settlement
agreement, and hence the agency complied with the settlement agreement.
On appeal, complainant argues that the issue of his supervisor creating
a hostile work environment was not addressed, and she is retaliating
against him for filing prior EEO complaints. He specifically raises
the April 30, 2009, incident of the supervisor allegedly following and
screaming at him, as well as other alleged acts of reprisal.
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules of
contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case we find, for the same reasons in the FAD, that the
agency did not breach the settlement agreement. However, complainant's
claim of retaliatory hostile work environment should be treated as a
request for counseling on a discrimination claim. On remand, the agency
shall treat the notice of breach, and any related follow up contacts with
the EEO office as a request for EEO counseling, and counsel complainant
and process the matter in accordance with 29 C.F.R. § 1614.105(b)(1)
et seq.
ORDER
The agency shall treat the notice of breach, and any related follow
up contacts with the EEO office, as a request for EEO counseling, and
counsel complainant and process the matter in accordance with 29 C.F.R. §
1614.105(b)(1) et seq. The agency shall acknowledge to the complainant
that it has received his request for counseling within thirty (30)
calendar days of the date this decision becomes final.
A copy of the agency's letter of acknowledgment to complainant must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
November 20, 2009
__________________
Date
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"29 C.F.R. § 1614.405",
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4,949 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120092055.txt | 0120092055.txt | TXT | text/plain | 10,520 | Ed Kulzer, Complainant, v. Gregory B. Jaczko, Chairman, Nuclear Regulatory Commission, Agency. | March 18, 2008 | Appeal Number: 0120092055
Complaint Allegations:
In his complaint, complainant alleged that he was subjected to discrimination on the bases of disability (occlusive disease, blind in right eye), age (from 56 to 62 years of age at the time of the various incidents described), and reprisal for prior protected EEO activity under a statute that was unspecified in the record when: 1. From September 5, 2002 to November 14, 2008, complainant was subjected to a hostile work environment.
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 18, 20081, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of disability (occlusive disease, blind in
right eye), age (from 56 to 62 years of age at the time of the various
incidents described), and reprisal for prior protected EEO activity
under a statute that was unspecified in the record when:
1. From September 5, 2002 to November 14, 2008, complainant was subjected
to a hostile work environment.
The agency dismissed the claim finding that complainant's EEO counselor
contact was untimely for some of the actions complained of, and the
remaining actions were insufficiently severe or pervasive to state a claim
of harassment. Complainant listed numerous acts of alleged harassment
which we identify as follows:
1. On or about September 5, 2002, after filing his "Differing Profession
View," complainant's performance rating declined to a rating of 2.0 in
2002 and 1.5 in 2003;
2. On or about November 17, 2003, through mediation between the Union
and Regional Deputy Administrator concerning an unfair labor practice,
complainant was transferred to the Materials Inspection Branch;
3. On August 31, 2007 complainant applied for the position of Manager
of Safety and Health but never heard anything back about the position;
4. In October 2007 complainant took a five day Transportation of
Radioactive Material Course H-308, with a four hour open book exam at
the conclusion of the course;
5. On or about June 25, 2007 the Branch Chief (RMO1) told complainant
that he could no longer write violations in the field and that he had
to bring them back to the office;
6. In February 2008, despite complainant's explanation that he had vision
problems and would prefer not to repeat the exam, RMO1 told complainant
to retake the four hour open book exam he had failed the previous October,
without waiting for documentation from complainant's physician;
7. On February 20, 2008, complainant was informed he had again failed
the open book exam;
8. On some unspecified date, RMO1 informed complainant that RMO1 would
take complainant out on two independent inspections and RMO1 would observe
complainant and would write a note to his file stating that complainant
could continue to conduct independent inspections if the two supervised
inspections were successful;
9. On March 7, 2008 RMO1 yelled at complainant for not having the file
available on one of the supervised inspections;
10. On some unspecified date, complainant was wrongly held responsible
for errors committed by others;
11. On September 22, 2008 RMO1 informed complainant he had 45 days to pass
the third examination and subsequently provided him with accommodations
to complete the task;
12. On or about September 26, 2008 agency management officials disagreed
with a Union Stewart who argued that complainant should not be required
to take refresher training;
13. In October 2008 complainant attended the training course again where
he met another Senior Resident Inspector who had failed the same course
but did not receive any threatening memorandum, unlike complainant;
14. From October 28 to 31, 2008 complainant re-took the examination in
his office with accommodations for his visual disability; and
15. On either November 14 or 162, 2008 complainant learned via electronic
mail that he had passed the examination.
The agency found that complainant first contacted an EEO counselor on
September 30, 2008 and that the actions complained of in incidents 1
through 93 were therefore untimely raised. The agency further found that
the remaining incidents failed to state a claim of either harassment or
disparate treatment when viewed individually.
The Supreme Court has held that a complainant alleging a hostile work
environment will not be time barred if all acts constituting the claim
are part of the same unlawful practice and at least one act falls within
the filing period. See National Railroad Passenger Corp. v. Morgan,
122 S.Ct. 2061 (June 10, 2002). The Court further held, however, that
"discrete discriminatory acts are not actionable if time barred, even
when they are related to acts alleged in timely filed charges." Id.
Finally, the Court held that such untimely discrete acts may be used as
background evidence in support of a timely claim. Id.
As regards the incidents 1 through 3, 6, and 7, we find that these
constitute "discrete acts" under Morgan and that complainant's EEO
counselor contact was untimely. We further find that complainant, on
appeal, has presented no persuasive arguments or evidence warranting an
extension of the time limit for initiating EEO Counselor contact
As regards the remaining incidents detailed in his complaint, Commission
finds that even if considered together, they fail to state a viable
claim under the
Legal Analysis:
EEOC regulations because complainant failed to allege
that he was subjected to unwelcome verbal or physical conduct involving
his protected classes, that the harassment complained of was based
on his statutorily protected classes, and that the harassment had the
purpose or effect of unreasonably interfering with his work performance
and/or creating an intimidating, hostile, or offensive work environment.
See McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982)). Nor has he shown he suffered harm or loss with respect to a
term, condition, or privilege of employment for which there is a remedy.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
For the above reasons we AFFIRM the FAD. | Ed Kulzer,
Complainant,
v.
Gregory B. Jaczko,
Chairman,
Nuclear Regulatory Commission,
Agency.
Appeal No. 0120092055
Agency No. NRC0901
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 18, 20081, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of disability (occlusive disease, blind in
right eye), age (from 56 to 62 years of age at the time of the various
incidents described), and reprisal for prior protected EEO activity
under a statute that was unspecified in the record when:
1. From September 5, 2002 to November 14, 2008, complainant was subjected
to a hostile work environment.
The agency dismissed the claim finding that complainant's EEO counselor
contact was untimely for some of the actions complained of, and the
remaining actions were insufficiently severe or pervasive to state a claim
of harassment. Complainant listed numerous acts of alleged harassment
which we identify as follows:
1. On or about September 5, 2002, after filing his "Differing Profession
View," complainant's performance rating declined to a rating of 2.0 in
2002 and 1.5 in 2003;
2. On or about November 17, 2003, through mediation between the Union
and Regional Deputy Administrator concerning an unfair labor practice,
complainant was transferred to the Materials Inspection Branch;
3. On August 31, 2007 complainant applied for the position of Manager
of Safety and Health but never heard anything back about the position;
4. In October 2007 complainant took a five day Transportation of
Radioactive Material Course H-308, with a four hour open book exam at
the conclusion of the course;
5. On or about June 25, 2007 the Branch Chief (RMO1) told complainant
that he could no longer write violations in the field and that he had
to bring them back to the office;
6. In February 2008, despite complainant's explanation that he had vision
problems and would prefer not to repeat the exam, RMO1 told complainant
to retake the four hour open book exam he had failed the previous October,
without waiting for documentation from complainant's physician;
7. On February 20, 2008, complainant was informed he had again failed
the open book exam;
8. On some unspecified date, RMO1 informed complainant that RMO1 would
take complainant out on two independent inspections and RMO1 would observe
complainant and would write a note to his file stating that complainant
could continue to conduct independent inspections if the two supervised
inspections were successful;
9. On March 7, 2008 RMO1 yelled at complainant for not having the file
available on one of the supervised inspections;
10. On some unspecified date, complainant was wrongly held responsible
for errors committed by others;
11. On September 22, 2008 RMO1 informed complainant he had 45 days to pass
the third examination and subsequently provided him with accommodations
to complete the task;
12. On or about September 26, 2008 agency management officials disagreed
with a Union Stewart who argued that complainant should not be required
to take refresher training;
13. In October 2008 complainant attended the training course again where
he met another Senior Resident Inspector who had failed the same course
but did not receive any threatening memorandum, unlike complainant;
14. From October 28 to 31, 2008 complainant re-took the examination in
his office with accommodations for his visual disability; and
15. On either November 14 or 162, 2008 complainant learned via electronic
mail that he had passed the examination.
The agency found that complainant first contacted an EEO counselor on
September 30, 2008 and that the actions complained of in incidents 1
through 93 were therefore untimely raised. The agency further found that
the remaining incidents failed to state a claim of either harassment or
disparate treatment when viewed individually.
The Supreme Court has held that a complainant alleging a hostile work
environment will not be time barred if all acts constituting the claim
are part of the same unlawful practice and at least one act falls within
the filing period. See National Railroad Passenger Corp. v. Morgan,
122 S.Ct. 2061 (June 10, 2002). The Court further held, however, that
"discrete discriminatory acts are not actionable if time barred, even
when they are related to acts alleged in timely filed charges." Id.
Finally, the Court held that such untimely discrete acts may be used as
background evidence in support of a timely claim. Id.
As regards the incidents 1 through 3, 6, and 7, we find that these
constitute "discrete acts" under Morgan and that complainant's EEO
counselor contact was untimely. We further find that complainant, on
appeal, has presented no persuasive arguments or evidence warranting an
extension of the time limit for initiating EEO Counselor contact
As regards the remaining incidents detailed in his complaint, Commission
finds that even if considered together, they fail to state a viable
claim under the EEOC regulations because complainant failed to allege
that he was subjected to unwelcome verbal or physical conduct involving
his protected classes, that the harassment complained of was based
on his statutorily protected classes, and that the harassment had the
purpose or effect of unreasonably interfering with his work performance
and/or creating an intimidating, hostile, or offensive work environment.
See McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982)). Nor has he shown he suffered harm or loss with respect to a
term, condition, or privilege of employment for which there is a remedy.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
For the above reasons we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
September 18, 2009
__________________
Date
1 The FAD is dated March 18, 2008 but since the Formal Complaint was
filed on November 26, 2008, complainant's appeal was filed on April 16,
2009, and the agency does not argue that complainant's appeal is untimely,
we presume the actual date of the FAD is March 18, 2009.
2 The FAD indicates that complainant learned that he passed the exam on
either November 14 or November 16, 2008.
3 These incidents are numbered differently in the FAD.
??
??
??
??
| [
"McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999)",
"Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994)",
"122 S.Ct. 2061",
"682 F.2d 897",
"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.604",
"29 C.F.R. § 1614.604(c)",
"42 U.S.C. § 2000e",
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0.0125110... |
4,950 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120092032.txt | 0120092032.txt | TXT | text/plain | 10,656 | Juan W. Layme, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | February 25, 2009 | Appeal Number: 0120092032
Case Facts:
Complainant filed a timely appeal with this Commission from a final
agency decision dated February 25, 2009, 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. The appeal is accepted pursuant to 29
C.F.R. § 1614.405(a).
During the relevant period, complainant worked as a mail clerk at a San
Juan, Puerto Rico facility of the agency. On May 6, 2005, complainant
initiated EEO contact alleging that the agency discriminated against him
on the bases of race (Peruvian), national origin (not from Puerto Rico),
disability (Post Traumatic Stress Disorder), and reprisal for prior
protected EEO activity when (1) he was informed that there was no work
available at his facility and was assigned to another station to cover
an emergency, and (2) the agency denied him training and opportunities
as a supervisor. In a formal EEO complaint dated September 2, 2005,
complainant alleged that the agency discriminated against him when
it removed him and took the actions alleged in (2). Initially, the
agency dismissed the claims pursuant to 29 C.F.R. § 1614.107(a) and
complainant filed an appeal with the Commission, which was docketed as
Layme v. U.S. Postal Service, EEOC Appeal No. 01A60481.
In Layme v. U.S. Postal Service, EEOC Appeal No. 01A60481 (April 25,
2006), the Commission found that the agency improperly dismissed (1) and
(2) for failure to state a claim and remanded the matters to the agency
for further processing. The agency conducted an investigation of (1)
and (2), after which complainant requested a hearing before an EEOC
Administrative Judge (AJ). Following an extensive procedural history
at the hearing stage, in an Order of Dismissal dated January 20, 2009,
the AJ dismissed complainant's claims "for failure to comply with orders
of the Administrative Judge." The AJ cited failure by complainant
to attend a telephonic prehearing conference and the hearing, without
adequate justification. The AJ returned the complaint to the agency
for a final decision.
In its February 25 final decision, the agency dismissed (1) pursuant to 29
C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact, stating that
management placed complainant at another facility effective February 5,
2005 to March 4, 2005 and complainant did not initiate EEO contact until
May 6, 2005; and (2) pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim, stating that the record reveals that complainant had
various training and he failed to show that he requested and was denied
training or management opportunities. Further, the agency stated,
assuming complainant's claims are procedurally sufficient, he failed
to establish discrimination. The agency stated (1) in February 2005,
complainant was placed at another facility to cover an emergency -
leave for that station's employees and, in August 2005, complainant's
position and other similar positions were abolished under a District
Committee Review, but complainant remained to serve in other positions.
The agency reiterated its procedural explanation for (2). Summarily,
the agency found that complainant failed to establish prima facie
cases of discrimination or that the legitimate, nondiscriminatory
reasons articulated by the agency are pretext. The instant appeal from
complainant followed.
On appeal, complainant stated, as to (1), he was removed from his
position and assigned to another station between February 2005 and
August 2005 without regard for his medical restrictions and that he
is not grieving agency actions after August 6. For (2), complainant
stated that he learned that other clerks were scheduled and sent for
training during his placement at another assignment and a manager was
unwilling to provide him training or opportunities. Complainant stated
that managers spoke badly about him.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
We find that complainant failed to establish by a preponderance of
the evidence that discrimination occurred.1 To prevail in a disparate
treatment claim such as this, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a
prima facie case by demonstrating that he was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 567,
576 (1978). The prima facie inquiry may be dispensed with in this case,
however, since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See U. S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately
prevail, complainant must prove, by a preponderance of the evidence,
that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000);
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (December 14,
1995). We find that complainant failed to present evidence that the
agency's actions were motivated by discriminatory animus toward his
protected classes. We find that complainant failed to show pretext.
Based on a thorough review of the record, we AFFIRM the final agency
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
September 1, 2009
__________________
Date
1 We assume for the purpose of
Legal Analysis:
the Commission, which was docketed as
Layme v. U.S. Postal Service, EEOC Appeal No. 01A60481.
In Layme v. U.S. Postal Service, EEOC Appeal No. 01A60481 (April 25,
2006), the Commission found that the agency improperly dismissed (1) and
(2) for failure to state a claim and remanded the matters to the agency
for further processing. The agency conducted an investigation of (1)
and (2), after which complainant requested a hearing before an EEOC
Administrative Judge (AJ). Following an extensive procedural history
at the hearing stage, in an Order of Dismissal dated January 20, 2009,
the AJ dismissed complainant's claims "for failure to comply with orders
of the Administrative Judge." The AJ cited failure by complainant
to attend a telephonic prehearing conference and the hearing, without
adequate justification. The AJ returned the complaint to the agency
for a final decision.
In its February 25 final decision, the agency dismissed (1) pursuant to 29
C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact, stating that
management placed complainant at another facility effective February 5,
2005 to March 4, 2005 and complainant did not initiate EEO contact until
May 6, 2005; and (2) pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim, stating that the record reveals that complainant had
various training and he failed to show that he requested and was denied
training or management opportunities. Further, the agency stated,
assuming complainant's claims are procedurally sufficient, he failed
to establish discrimination. The agency stated (1) in February 2005,
complainant was placed at another facility to cover an emergency -
leave for that station's employees and, in August 2005, complainant's
position and other similar positions were abolished under a District
Committee Review, but complainant remained to serve in other positions.
The agency reiterated its procedural explanation for (2). Summarily,
the agency found that complainant failed to establish prima facie
cases of discrimination or that the legitimate, nondiscriminatory
reasons articulated by the agency are pretext. The instant appeal from
complainant followed.
On appeal, complainant stated, as to (1), he was removed from his
position and assigned to another station between February 2005 and
August 2005 without regard for his medical restrictions and that he
is not grieving agency actions after August 6. For (2), complainant
stated that he learned that other clerks were scheduled and sent for
training during his placement at another assignment and a manager was
unwilling to provide him training or opportunities. Complainant stated
that managers spoke badly about him.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
We find that complainant failed to establish by a preponderance of
the evidence that discrimination occurred.1 To prevail in a disparate
treatment claim such as this, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a
prima facie case by demonstrating that he was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 567,
576 (1978). The prima facie inquiry may be dispensed with in this case,
however, since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See U. S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately
prevail, complainant must prove, by a preponderance of the evidence,
that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000);
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (December 14,
1995). We find that complainant failed to present evidence that the
agency's actions were motivated by discriminatory animus toward his
protected classes. We find that complainant failed to show pretext.
Based on a thorough review of the record, we AFFIRM the final agency
decision. | Juan W. Layme,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092032
Hearing No. 510-2008-00132X
Agency No. 4A-006-0059-05
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated February 25, 2009, 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. The appeal is accepted pursuant to 29
C.F.R. § 1614.405(a).
During the relevant period, complainant worked as a mail clerk at a San
Juan, Puerto Rico facility of the agency. On May 6, 2005, complainant
initiated EEO contact alleging that the agency discriminated against him
on the bases of race (Peruvian), national origin (not from Puerto Rico),
disability (Post Traumatic Stress Disorder), and reprisal for prior
protected EEO activity when (1) he was informed that there was no work
available at his facility and was assigned to another station to cover
an emergency, and (2) the agency denied him training and opportunities
as a supervisor. In a formal EEO complaint dated September 2, 2005,
complainant alleged that the agency discriminated against him when
it removed him and took the actions alleged in (2). Initially, the
agency dismissed the claims pursuant to 29 C.F.R. § 1614.107(a) and
complainant filed an appeal with the Commission, which was docketed as
Layme v. U.S. Postal Service, EEOC Appeal No. 01A60481.
In Layme v. U.S. Postal Service, EEOC Appeal No. 01A60481 (April 25,
2006), the Commission found that the agency improperly dismissed (1) and
(2) for failure to state a claim and remanded the matters to the agency
for further processing. The agency conducted an investigation of (1)
and (2), after which complainant requested a hearing before an EEOC
Administrative Judge (AJ). Following an extensive procedural history
at the hearing stage, in an Order of Dismissal dated January 20, 2009,
the AJ dismissed complainant's claims "for failure to comply with orders
of the Administrative Judge." The AJ cited failure by complainant
to attend a telephonic prehearing conference and the hearing, without
adequate justification. The AJ returned the complaint to the agency
for a final decision.
In its February 25 final decision, the agency dismissed (1) pursuant to 29
C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact, stating that
management placed complainant at another facility effective February 5,
2005 to March 4, 2005 and complainant did not initiate EEO contact until
May 6, 2005; and (2) pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim, stating that the record reveals that complainant had
various training and he failed to show that he requested and was denied
training or management opportunities. Further, the agency stated,
assuming complainant's claims are procedurally sufficient, he failed
to establish discrimination. The agency stated (1) in February 2005,
complainant was placed at another facility to cover an emergency -
leave for that station's employees and, in August 2005, complainant's
position and other similar positions were abolished under a District
Committee Review, but complainant remained to serve in other positions.
The agency reiterated its procedural explanation for (2). Summarily,
the agency found that complainant failed to establish prima facie
cases of discrimination or that the legitimate, nondiscriminatory
reasons articulated by the agency are pretext. The instant appeal from
complainant followed.
On appeal, complainant stated, as to (1), he was removed from his
position and assigned to another station between February 2005 and
August 2005 without regard for his medical restrictions and that he
is not grieving agency actions after August 6. For (2), complainant
stated that he learned that other clerks were scheduled and sent for
training during his placement at another assignment and a manager was
unwilling to provide him training or opportunities. Complainant stated
that managers spoke badly about him.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
We find that complainant failed to establish by a preponderance of
the evidence that discrimination occurred.1 To prevail in a disparate
treatment claim such as this, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a
prima facie case by demonstrating that he was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 567,
576 (1978). The prima facie inquiry may be dispensed with in this case,
however, since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See U. S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately
prevail, complainant must prove, by a preponderance of the evidence,
that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000);
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (December 14,
1995). We find that complainant failed to present evidence that the
agency's actions were motivated by discriminatory animus toward his
protected classes. We find that complainant failed to show pretext.
Based on a thorough review of the record, we AFFIRM the final agency
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
September 1, 2009
__________________
Date
1 We assume for the purpose of analysis that complainant is an individual
with a disability. See 29 C.F.R. § 1630.2(g)(1)
??
??
??
??
| [
"Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997)",
"Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (December 14, 1995)",
"411 U.S. 792",
"438 U.S. 567",
"460 U.S. 711",
"530 U.S. 133",
"509 U.S. 502",
"450 U.S. 248",
"29 C.F.R. § 1614.405(a)",
"29 C.F.R.... | [
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0.020571835339069366,
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0.013506... |
4,951 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120091964.txt | 0120091964.txt | TXT | text/plain | 10,782 | Laura Cook, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency. | March 6, 2009 | Appeal Number: 0120091964
Legal Analysis:
the Commission stated that "the agency has the burden of providing
evidence and/or proof to support its final decisions." See also Gens
v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
Complainant filed her formal complaint on January 6, 2009, which is within
15 business days of the date she received the NORF (December 18, 2008)
and the time-frame she said she thought applied. Although 15 calendar
days is the statutory time-frame, the EEO Counselor acknowledged that
complainant asked him and he also was unsure of the manner of measurement.
It is not reasonable to hold complainant accountable for information
which the Counselor could not provide. Based on the above, we find the
time limit subject to tolling and that the agency did not satisfy its
burden for dismissal.
The agency's final decision dismissing complainant's complaint on
the grounds that it was untimely filed is REVERSED. The complaint is
REMANDED to the agency for further processing in accordance with this
decision and the ORDER below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
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 (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409. | Laura Cook,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120091964
Agency No. BOP-2009-0122
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated March 6, 2009, dismissing her 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.
On November 17, 2008, complainant initiated EEO contact alleging that the
agency subjected her to harassment on the basis of sex (female) when, on
October 24, 2008, her supervisor (S1) accused her of attracting inmates
and sought to give complainant a Fully Successful on her performance
evaluation; on November 12, 2008, S1 attempted to intimidate her
during a staff meeting; S1 took no action after she informed him that
an inmate threatened her in July 2008; and management took no action
after complainant reported sexual harassment to the agency chaplain in
November 2008. On December 19, 2008, an EEO Counselor (EC1) issued
complainant a Notice of Right to File (NORF) informing her that she
had 15 days after receipt of the NORF to file a formal EEO complaint.
The December 19, 2008 NORF contains the signature of both EC1 and
complainant. Complainant filed a formal EEO complaint dated December 30,
2008 reiterating the above claim.
In its March 6 final decision, the agency dismissed complainant's
complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for an untimely formal
complaint. Specifically, the agency stated that the formal complaint was
filed on January 6, 2009, which is beyond the 15-day statutory time-frame,
and hence is untimely. The instant appeal from complainant followed.
On appeal, complainant provided the explanation that she asked EC1 if "15
days" was measured by calendar days or business days, and he was unsure
but thought "business days." Complainant added that her complaint is
timely if calculated in terms of business days. EC1 acknowledged that
he was unsure which manner to calculate, but added that he referred
complainant to another person for clarification.
We find that complainant's complaint was improperly dismissed pursuant
to 29 C.F.R. § 1614.107(a)(2). The regulation set forth at 29 C.F.R. §
1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a
complaint which fails to comply with the applicable time limits contained
in 29 C.F.R. § 1614.106, which, in turn, requires the filing of a formal
complaint within fifteen (15) days of receiving the notice of the right
to do so. All § 1614 time limits are in terms of calendar days unless
otherwise noted. Moreover, the time limits are subject to waiver,
estoppel, and equitable tolling. 29 C.F.R. § 1614.604(c).
Where, as here, there is an issue of timeliness, "[a]n agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness." Guy, v. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in
Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14,
1993), the Commission stated that "the agency has the burden of providing
evidence and/or proof to support its final decisions." See also Gens
v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
Complainant filed her formal complaint on January 6, 2009, which is within
15 business days of the date she received the NORF (December 18, 2008)
and the time-frame she said she thought applied. Although 15 calendar
days is the statutory time-frame, the EEO Counselor acknowledged that
complainant asked him and he also was unsure of the manner of measurement.
It is not reasonable to hold complainant accountable for information
which the Counselor could not provide. Based on the above, we find the
time limit subject to tolling and that the agency did not satisfy its
burden for dismissal.
The agency's final decision dismissing complainant's complaint on
the grounds that it was untimely filed is REVERSED. The complaint is
REMANDED to the agency for further processing in accordance with this
decision and the ORDER below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
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 (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (R0408)
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 (Z1008)
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
August 18, 2009
__________________
Date
| [
"Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)",
"Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993)",
"Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.106",
"29 C.F.R. ... | [
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4,952 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120091895.txt | 0120091895.txt | TXT | text/plain | 10,130 | Jeffrey L. Kayser, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | February 17, 2009 | Appeal Number: 0120091895
Case Facts:
Complainant filed a timely appeal with this Commission from a final
agency decision dated February 17, 2009, 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.
Legal Analysis:
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2).
During the relevant time, complainant was a mail-handler at an Iowa
facility of the agency. On October 24, 2008, complainant initiated
EEO contact alleging that the agency discriminated against him on
the basis of sex (male) when, between July 30 and September 11, 2008,
he was not allowed to work but his female coworkers with similar work
restrictions were allowed to do so. Complainant stated that he learned
of the disparate treatment, on September 11, 2008, upon his return from
a workers' compensation injury.
In its final decision, the agency dismissed complainant's complaint
pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor
contact. Specifically, the agency stated that, on July 30, complainant
was aware that the agency told him that there was no work available
and he had 45 days from that date to initiate EEO contact. Further,
the agency found that complainant failed to show that his justification
warrants an extension of the statutory time-frame. The instant appeal
from complainant followed.
On appeal, complainant reiterated his contention that he first learned of
the alleged discriminatory action on September 11 because he was not at
work between that date and July 30, 2008. Further, complainant alleged
that, following his return to work, his supervisor stated
that "[complainant needed to] grow some tits." Complainant indicated
that the July 30 statement that work was unavailable did not make him
suspect that he was being treated differently.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. The
Commission has adopted a "reasonable suspicion" standard (as opposed to a
"supportive facts" standard) to determine when the forty-five (45) day
limitation period is triggered. See Howard v. Dep't of the Navy, EEOC
Request No. 05970852 (February 11, 1999). Thus, the time limitation is
not triggered until a complainant reasonably suspects discrimination, but
before all the facts that support a charge of discrimination have become
apparent. McLouglin v. Dep't of the Treasury, EEOC Request No. 05A01093
(April 24, 2003).
We find that, on appeal, complainant presented persuasive arguments
warranting an extension of the time limit for initiating EEO Counselor
contact. We conclude that complainant did not reasonably suspect
discrimination until he returned to work on September 11, 2008 (rather
than when he was informed that work was unavailable on July 30) and,
hence, his initial EEO contact on October 24, 2008 is within the
forty-five (45) day limitation period. | Jeffrey L. Kayser,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091895
Agency No. 4E-500-0007-09
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated February 17, 2009, 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.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2).
During the relevant time, complainant was a mail-handler at an Iowa
facility of the agency. On October 24, 2008, complainant initiated
EEO contact alleging that the agency discriminated against him on
the basis of sex (male) when, between July 30 and September 11, 2008,
he was not allowed to work but his female coworkers with similar work
restrictions were allowed to do so. Complainant stated that he learned
of the disparate treatment, on September 11, 2008, upon his return from
a workers' compensation injury.
In its final decision, the agency dismissed complainant's complaint
pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor
contact. Specifically, the agency stated that, on July 30, complainant
was aware that the agency told him that there was no work available
and he had 45 days from that date to initiate EEO contact. Further,
the agency found that complainant failed to show that his justification
warrants an extension of the statutory time-frame. The instant appeal
from complainant followed.
On appeal, complainant reiterated his contention that he first learned of
the alleged discriminatory action on September 11 because he was not at
work between that date and July 30, 2008. Further, complainant alleged
that, following his return to work, his supervisor stated
that "[complainant needed to] grow some tits." Complainant indicated
that the July 30 statement that work was unavailable did not make him
suspect that he was being treated differently.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. The
Commission has adopted a "reasonable suspicion" standard (as opposed to a
"supportive facts" standard) to determine when the forty-five (45) day
limitation period is triggered. See Howard v. Dep't of the Navy, EEOC
Request No. 05970852 (February 11, 1999). Thus, the time limitation is
not triggered until a complainant reasonably suspects discrimination, but
before all the facts that support a charge of discrimination have become
apparent. McLouglin v. Dep't of the Treasury, EEOC Request No. 05A01093
(April 24, 2003).
We find that, on appeal, complainant presented persuasive arguments
warranting an extension of the time limit for initiating EEO Counselor
contact. We conclude that complainant did not reasonably suspect
discrimination until he returned to work on September 11, 2008 (rather
than when he was informed that work was unavailable on July 30) and,
hence, his initial EEO contact on October 24, 2008 is within the
forty-five (45) day limitation period. Accordingly, we REVERSE the
agency's dismissal of complainant's complaint and REMAND the matter to
the agency for further processing in accordance with this decision and
the Order below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
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 (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (R0408)
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 (Z1008)
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
June 30, 2009
__________________
Date
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4,953 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120091527.r.txt | 0120091527.r.txt | TXT | text/plain | 10,778 | Rhonda Y. Jackson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | February 13, 2009 | Appeal Number: 0120091527
Background:
Complainant began working for the agency in July 2000. During the period at issue, complainant worked as a Full-Time City Carrier at the agency's Liberty Station in Ann Arbor, Michigan. On June 11, 2007, complainant filed an EEO complaint alleging that in March 2007, her supervisors subjected her to retaliatory harassment.
The agency accepted the complaint and at the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, and the AJ held a hearing on December 16, 2008 and issued a decision on January 6, 2009.
In his decision, the AJ found that complainant did not prove that she was subjected to conduct that was sufficiently severe or pervasive to create a hostile work environment and that she failed to prove management was motivated by retaliatory animus. The AJ found that many of the management's actions, about which complainant complained, actually pre-dated her EEO activity. For example, the agency allegedly "shorted" her pay check, charged her absent without leave, changed her starting time and assigned her work outside of her restrictions before as well as after she contacted an EEO Counselor alleging race and sex discrimination. The AJ concluded that the fact that complainant complained about work conditions that were generally the same both before and after her protected activity defeated any inference of retaliatory intent. In addition, the AJ found that her first line supervisor credibly testified that she had no knowledge of complainant's prior EEO activity when she enforced complainant's bid time and that her second line supervisor, who did know about the prior protected activity, changed her hours consistent with a new modified duty assignment for a legitimate and non discriminatory reason, namely that her new assignment required her to work in the lobby and the lobby hours were different from those she usually worked.
Finally, the AJ found that the allegedly harassing conduct on which complainant was most focused involved being worked outside her medical restrictions. The AJ did not find that this in fact happened, but rather that complainant was assigned work within the restrictions provided by her doctor, the appropriateness of which complainant disputed. In addition, the AJ also found that for the period of time in which it allegedly happened, March 6 - 14, 2007, complainant only worked three days. He thus concluded that the conduct was neither severe nor pervasive enough to create a hostile work environment.
The agency subsequently issued a final order adopting the AJ's finding that complainant failed to prove that she was subjected to the alleged harassment. Although complainant did not submit a statement in support of her appeal, the agency submitted a brief requesting that we affirm its final order.
Legal Analysis:
the Commission AFFIRMS the agency's final order.
BACKGROUND
Complainant began working for the agency in July 2000. During the period at issue, complainant worked as a Full-Time City Carrier at the agency's Liberty Station in Ann Arbor, Michigan. On June 11, 2007, complainant filed an EEO complaint alleging that in March 2007, her supervisors subjected her to retaliatory harassment.
The agency accepted the complaint and at the | Rhonda Y. Jackson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091527
Hearing No. 471-2008-00003X
Agency No. 4J-481-0068-07
DECISION
On February 13, 2009, complainant filed an appeal from the agency's January 26, 2009 final order concerning an equal employment opportunity (EEO) complaint claiming 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. The appeal is deemed timely and is accepted pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
Complainant began working for the agency in July 2000. During the period at issue, complainant worked as a Full-Time City Carrier at the agency's Liberty Station in Ann Arbor, Michigan. On June 11, 2007, complainant filed an EEO complaint alleging that in March 2007, her supervisors subjected her to retaliatory harassment.
The agency accepted the complaint and at the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, and the AJ held a hearing on December 16, 2008 and issued a decision on January 6, 2009.
In his decision, the AJ found that complainant did not prove that she was subjected to conduct that was sufficiently severe or pervasive to create a hostile work environment and that she failed to prove management was motivated by retaliatory animus. The AJ found that many of the management's actions, about which complainant complained, actually pre-dated her EEO activity. For example, the agency allegedly "shorted" her pay check, charged her absent without leave, changed her starting time and assigned her work outside of her restrictions before as well as after she contacted an EEO Counselor alleging race and sex discrimination. The AJ concluded that the fact that complainant complained about work conditions that were generally the same both before and after her protected activity defeated any inference of retaliatory intent. In addition, the AJ found that her first line supervisor credibly testified that she had no knowledge of complainant's prior EEO activity when she enforced complainant's bid time and that her second line supervisor, who did know about the prior protected activity, changed her hours consistent with a new modified duty assignment for a legitimate and non discriminatory reason, namely that her new assignment required her to work in the lobby and the lobby hours were different from those she usually worked.
Finally, the AJ found that the allegedly harassing conduct on which complainant was most focused involved being worked outside her medical restrictions. The AJ did not find that this in fact happened, but rather that complainant was assigned work within the restrictions provided by her doctor, the appropriateness of which complainant disputed. In addition, the AJ also found that for the period of time in which it allegedly happened, March 6 - 14, 2007, complainant only worked three days. He thus concluded that the conduct was neither severe nor pervasive enough to create a hostile work environment.
The agency subsequently issued a final order adopting the AJ's finding that complainant failed to prove that she was subjected to the alleged harassment. Although complainant did not submit a statement in support of her appeal, the agency submitted a brief requesting that we affirm its final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999).
To establish a claim of retaliatory harassment, complainant must prove that she was subjected to a hostile work environment by establishing that he was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in complainant's position would have found the conduct to be hostile or abusive. The Supreme Court stated that such conduct must be both objectively and subjectively offensive, such that a reasonable person would find it to be hostile or abusive, and that the victim perceived the environment to be hostile and abusive. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). Second, complainant must also prove that the conduct was taken because of a protected basis, i.e. in this case, reprisal. Only if complainant establishes both of those elements, does the question of vicarious liability for supervisory harassment present itself.
Upon review of the record, we find that the AJ's findings of fact are supported by substantial evidence and that there is no objective evidence of record that undermines his credibility determinations. We also find that the AJ's analytical application of the facts to the relevant legal standards for establishing hostile work environment harassment is consistent with the Commission's policies and precedent.
Complainant was injured in an automobile accident in November 2006. Prior to the accident, she had been evaluated as a good employee with a commendable attendance record. Upon her return to work, she was given modified duty assignments consistent with her medical restrictions. The allegedly harassing incidents are all connected to management's efforts to keep complainant performing useful work within her restrictions. These efforts were ongoing and started before complainant engaged in protected activity. There is no evidence that management's actions were unlawfully motivated. Again, we note that complainant is silent on appeal and provides no argument as to why we should disturb the AJ's decision. For the reasons set forth above, we decline to do so.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
March 18, 2010
__________________
Date
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4,954 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120091484.txt | 0120091484.txt | TXT | text/plain | 10,223 | Roy E. Stigall, JR, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | January 20, 2009 | Appeal Number: 0120091484
Complaint Allegations:
In his complaint, complainant alleged that he was subjected to harassment on the bases of race (Black), disability (not specified), and age (DOB July 13, 1954). He asserted that the following events occurred: 1. On July 29, 2008, when he was informed that his route would be changed from driving to walking; 2. On September 3, 2008, complainant's supervisor told him that he was not working fast enough and watched complainant case his mail; 3. On September 4, 2008, complainant was instructed to submit a doctor's note and told that he did not have FMLA; 4. During a meeting on October 2, 2008, complainant's supervisor called him a horrible carrier and that the meeting was a waste of time; 5. On October 1, 2008, Complainant became aware that the supervisor permitted other carriers to drive while he was forced to walk; 6. On October 3, 2008, complainant's supervisor stood behind complainant and watched him for 10 minutes stating that complainant's office time was too slow; 7. On November 3, 2008, Complainant's route was changed back to driving yet his labels and DPS were not changed; 8. On November 25, 2008, complainant's route was changed back to walking; and 9. Complainant's supervisor constantly treated complainant in an angry, disparate, and disrespectful manner.
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 20, 2009, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. In his complaint,
complainant alleged that he was subjected to harassment on the bases of
race (Black), disability (not specified), and age (DOB July 13, 1954).
He asserted that the following events occurred:
1. On July 29, 2008, when he was informed that his route would be changed
from driving to walking;
2. On September 3, 2008, complainant's supervisor told him that he was
not working fast enough and watched complainant case his mail;
3. On September 4, 2008, complainant was instructed to submit a doctor's
note and told that he did not have FMLA;
4. During a meeting on October 2, 2008, complainant's supervisor called
him a horrible carrier and that the meeting was a waste of time;
5. On October 1, 2008, Complainant became aware that the supervisor
permitted other carriers to drive while he was forced to walk;
6. On October 3, 2008, complainant's supervisor stood behind complainant
and watched him for 10 minutes stating that complainant's office time
was too slow;
7. On November 3, 2008, Complainant's route was changed back to driving
yet his labels and DPS were not changed;
8. On November 25, 2008, complainant's route was changed back to walking;
and
9. Complainant's supervisor constantly treated complainant in an angry,
disparate, and disrespectful manner.
The agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1)
for stating the same claim as a prior EEO complaint, namely Agency
No. 4F-956-0161-08 which was resolved by settlement agreement dated
September 9, 2008. In particular, the agency noted that the claim of
harassment was "merely an extension of the harassment claim raised"
in his prior EEO complaint. Complainant appealed the agency's dismissal.
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
It has long been established that "identical" does not mean "similar."
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident, and parties.
See Jackson v. Department of the Air Force, EEOC Appeal No 01955890
(April 5, 1996) rev'd on other grounds EEOC Request No. 05960524 (April
24, 1997).
Legal Analysis:
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident, and parties.
See Jackson v. Department of the Air Force, EEOC Appeal No 01955890
(April 5, 1996) rev'd on other grounds EEOC Request No. 05960524 (April
24, 1997).
Upon review of the record, we find that some of the events alleged in the
instant complaint were raised in the prior EEO complaint. In particular,
Event 1 was raised in complainant's prior EEO complaint. However, the
remaining events were not raised in complainant's prior EEO activity.
The events after September 3, 2008, constitute a new claim of harassment
alleged by complainant. These events were not resolved in the settlement
agreement signed on September 9, 2008. Therefore, we find that the
dismissal of the complaint as a whole was not appropriate. | Roy E. Stigall, JR,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091484
Agency No. 4F-956-0189-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 20, 2009, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. In his complaint,
complainant alleged that he was subjected to harassment on the bases of
race (Black), disability (not specified), and age (DOB July 13, 1954).
He asserted that the following events occurred:
1. On July 29, 2008, when he was informed that his route would be changed
from driving to walking;
2. On September 3, 2008, complainant's supervisor told him that he was
not working fast enough and watched complainant case his mail;
3. On September 4, 2008, complainant was instructed to submit a doctor's
note and told that he did not have FMLA;
4. During a meeting on October 2, 2008, complainant's supervisor called
him a horrible carrier and that the meeting was a waste of time;
5. On October 1, 2008, Complainant became aware that the supervisor
permitted other carriers to drive while he was forced to walk;
6. On October 3, 2008, complainant's supervisor stood behind complainant
and watched him for 10 minutes stating that complainant's office time
was too slow;
7. On November 3, 2008, Complainant's route was changed back to driving
yet his labels and DPS were not changed;
8. On November 25, 2008, complainant's route was changed back to walking;
and
9. Complainant's supervisor constantly treated complainant in an angry,
disparate, and disrespectful manner.
The agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1)
for stating the same claim as a prior EEO complaint, namely Agency
No. 4F-956-0161-08 which was resolved by settlement agreement dated
September 9, 2008. In particular, the agency noted that the claim of
harassment was "merely an extension of the harassment claim raised"
in his prior EEO complaint. Complainant appealed the agency's dismissal.
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
It has long been established that "identical" does not mean "similar."
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident, and parties.
See Jackson v. Department of the Air Force, EEOC Appeal No 01955890
(April 5, 1996) rev'd on other grounds EEOC Request No. 05960524 (April
24, 1997).
Upon review of the record, we find that some of the events alleged in the
instant complaint were raised in the prior EEO complaint. In particular,
Event 1 was raised in complainant's prior EEO complaint. However, the
remaining events were not raised in complainant's prior EEO activity.
The events after September 3, 2008, constitute a new claim of harassment
alleged by complainant. These events were not resolved in the settlement
agreement signed on September 9, 2008. Therefore, we find that the
dismissal of the complaint as a whole was not appropriate.
Accordingly, we reverse the agency's final decision dismissing the
complaint and remand the matter for further processing as ordered below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
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 (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (R0408)
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 (Z1008)
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
July 2, 2009
__________________
Date
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4,955 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120091458.txt | 0120091458.txt | TXT | text/plain | 9,119 | William H. Bailey, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency. | January 6, 2009 | Appeal Number: 0120091458
Complaint Allegations:
In his complaint, complainant alleged discrimination based on sex (male) when on August 1, 2008, his request for a reassignment to the Custodial Craft was denied, and the proper procedures were not followed.
Case Facts:
Legal Analysis:
Upon review, the Commission finds that the agency in its decision dated
January 6, 2009, improperly dismissed complainant's complaint due to
untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2).
In his complaint, complainant alleged discrimination based on sex
(male) when on August 1, 2008, his request for a reassignment to the
Custodial Craft was denied, and the proper procedures were not followed.
The agency stated that complainant's EEO Counselor contact regarding
the matter on September 19, 2008, was beyond the 45-day time limit under
the regulations.
EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within 45 days of the date of the matter alleged
to be discriminatory or, in the case of a personnel action, within 45
days of the effective date of the action. The Commission has adopted a
"reasonable suspicion" standard (as opposed to a "supportive facts"
standard) to determine when the 45-day limitation period is triggered.
See Howard v. Department of the Navy, EEOC Request No. 05970852 (February
11, 1999). Thus, the time limitation is not triggered until a complainant
reasonably suspects discrimination, but before all the facts that support
a charge of discrimination have become apparent.
On appeal, complainant contends that he did not suspect discrimination
until September 12, 2008, when he received an agency's dismissal
decision concerning his prior EEO complaint, and he went to his Charlotte
Processing & Distribution Center and found out about a female who received
a Custodial Craft job over him. He then contacted an EEO Counselor
regarding the instant claim in a timely manner. In response, the agency
proffers no evidence to overcome complainant's contentions that he did
not reasonably suspect discrimination until September 12, 2008. Thus,
we find that complainant's September 19, 2008 EEO Counselor contact was
within the 45-day time limit after he reasonably suspected discrimination
of the alleged incident on September 12, 2008.
Final Decision:
Accordingly, the agency's final decision is REVERSED. | William H. Bailey, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120091458
Agency No. 4K-280-0174-08
DECISION
Upon review, the Commission finds that the agency in its decision dated
January 6, 2009, improperly dismissed complainant's complaint due to
untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2).
In his complaint, complainant alleged discrimination based on sex
(male) when on August 1, 2008, his request for a reassignment to the
Custodial Craft was denied, and the proper procedures were not followed.
The agency stated that complainant's EEO Counselor contact regarding
the matter on September 19, 2008, was beyond the 45-day time limit under
the regulations.
EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within 45 days of the date of the matter alleged
to be discriminatory or, in the case of a personnel action, within 45
days of the effective date of the action. The Commission has adopted a
"reasonable suspicion" standard (as opposed to a "supportive facts"
standard) to determine when the 45-day limitation period is triggered.
See Howard v. Department of the Navy, EEOC Request No. 05970852 (February
11, 1999). Thus, the time limitation is not triggered until a complainant
reasonably suspects discrimination, but before all the facts that support
a charge of discrimination have become apparent.
On appeal, complainant contends that he did not suspect discrimination
until September 12, 2008, when he received an agency's dismissal
decision concerning his prior EEO complaint, and he went to his Charlotte
Processing & Distribution Center and found out about a female who received
a Custodial Craft job over him. He then contacted an EEO Counselor
regarding the instant claim in a timely manner. In response, the agency
proffers no evidence to overcome complainant's contentions that he did
not reasonably suspect discrimination until September 12, 2008. Thus,
we find that complainant's September 19, 2008 EEO Counselor contact was
within the 45-day time limit after he reasonably suspected discrimination
of the alleged incident on September 12, 2008.
CONCLUSION
Accordingly, the agency's final decision is REVERSED. The complaint
is REMANDED to the agency for further processing in accordance with the
Order herein.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
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 (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (R0408)
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 (Z1008)
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
5/13/10
__________________
Date
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4,956 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120091270.txt | 0120091270.txt | TXT | text/plain | 10,359 | Joi C. Hatch, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency. | December 30, 2008 | Appeal Number: 0120091270
Legal Analysis:
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).
However, the anti-retaliation provisions of the employment discrimination
statutes seek to prevent an employer from interfering with an employee's
efforts to secure or advance enforcement of the statutes' basic
guarantees, and are not limited to actions affecting employment terms
and conditions. Burlington Northern & Santa Fe Railroad. Co. v. White,
548 U. S. ____, 126 S. Ct. 2405 (2006). To state a viable claim of
retaliation, complainant must allege that: 1) s/he was subjected to an
action which a reasonable employee would have found materially adverse,
and 2) the action could dissuade a reasonable employee from making
or supporting a charge of discrimination. Id. While trivial harms
would not satisfy the initial prong of this inquiry, the significance
of the act of alleged retaliation will often depend upon the particular
circumstances. See also EEOC Compliance Manual, No. 915.003 (May 20,
1998) (any adverse treatment that is based upon a retaliatory motive and
is reasonably likely to deter the charging party or others from engaging
in protected activity states a claim).
In the present case, complainant has alleged that her second-level
supervisor chose to discuss her prior EEO activity with the highest
ranking official in the Food and Nutrition Service within complainant's
earshot in order to intimidate her. The involved management officials
have denied the event. The Commission finds that complainant has
alleged a viable claim of reprisal that requires further investigation
to establish what actually happened and why. | Joi C. Hatch,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120091270
Agency No. FNCS200800816
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 30, 2008, dismissing her 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.
At the time of the events at issue, complainant was employed by the agency
as a GS-13 Regional Nutritionist with the Food and Nutrition Service.
In an EEO complaint dated September 16, 2008, complainant alleged
that she was subjected to discrimination on the bases of sex (female)
and reprisal for prior protected EEO activity when her second-line
supervisor held an inappropriate conversation in an open area with the
SES-level Service Administrator, the highest-ranking official in the
Food and Nutrition Service. Specifically, complainant alleged that she
overheard her supervisor referencing complainant's prior EEO complaint
to the Administrator and stating that, "[complainant] does not know
how to file an EEO complaint." Complainant asserted that she felt
intimidated by this conversation. The agency dismissed the complaint
pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim,
asserting complainant was not aggrieved. The instant appeal followed.
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).
However, the anti-retaliation provisions of the employment discrimination
statutes seek to prevent an employer from interfering with an employee's
efforts to secure or advance enforcement of the statutes' basic
guarantees, and are not limited to actions affecting employment terms
and conditions. Burlington Northern & Santa Fe Railroad. Co. v. White,
548 U. S. ____, 126 S. Ct. 2405 (2006). To state a viable claim of
retaliation, complainant must allege that: 1) s/he was subjected to an
action which a reasonable employee would have found materially adverse,
and 2) the action could dissuade a reasonable employee from making
or supporting a charge of discrimination. Id. While trivial harms
would not satisfy the initial prong of this inquiry, the significance
of the act of alleged retaliation will often depend upon the particular
circumstances. See also EEOC Compliance Manual, No. 915.003 (May 20,
1998) (any adverse treatment that is based upon a retaliatory motive and
is reasonably likely to deter the charging party or others from engaging
in protected activity states a claim).
In the present case, complainant has alleged that her second-level
supervisor chose to discuss her prior EEO activity with the highest
ranking official in the Food and Nutrition Service within complainant's
earshot in order to intimidate her. The involved management officials
have denied the event. The Commission finds that complainant has
alleged a viable claim of reprisal that requires further investigation
to establish what actually happened and why. Accordingly, the agency's
dismissal is reversed and the complaint is remanded to the agency for
further processing in accordance with the following Order.
ORDER (E0408)
The agency is ordered to process the remanded claim in accordance with 29
C.F.R. § 1614.108 et seq. 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 (K0408)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (R0408)
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 (Z1008)
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
May 22, 2009
__________________
Date
| [
"Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994)",
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4,957 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120091166.txt | 0120091166.txt | TXT | text/plain | 10,902 | Becki F. Dornton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | December 5, 2008 | Appeal Number: 0120091166
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 5, 2008, dismissing her 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.
Legal Analysis:
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, in part.
In a complaint dated November 24, 2008, complainant alleged that she was
subjected to discrimination on the bases of sex (female) and age (47) when
she had to take a typing test to re-qualify for a job she had been doing
for 14 years, and when her job was abolished around October 1, 2008.
In her formal complaint, complainant clearly states that there was a
previous grievance settlement stating she would not have to take a typing
test for the same job. Thus, to that extent, the Commission has held that
an employee cannot use the EEO complaint process to lodge a collateral
attack on another proceeding. See Wills v. Department of Defense, EEOC
Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal
Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v.
United States Postal Service, EEOC Request No. 05930106 (June 25, 1993).
The proper forum for complainant to have raised her challenges to actions
which were covered in a grievance proceeding is within that proceeding
itself. The agency's dismissal regarding the typing test is affirmed.
Regarding the issue of her job being abolished or reverted, complainant
states that in an October 8, 2008 redress meeting she was told that
the actions were undertaken because of her EEO complaint. It was at
that time complainant learned her EEO activity was a factor in her job
abolishment. Complainant added that claim in her EEO complaint on Monday,
November 24, 2008, which is the date the agency states she filed her
formal complaint. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires
that complaints of discrimination should be brought to the attention
of the Equal Employment Opportunity Counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the
case of a personnel action, within forty-five (45) days of the effective
date of the action. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the forty-five (45) day limitation period is triggered. See Howard
v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999).
Thus, the time limitation is not triggered until a complainant reasonably
suspects discrimination, but before all the facts that support a charge
of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. In the instant case, complainant did not find out
until October 8, 2008 that her EEO activity was a factor in the decision
to abolish her job. Because the 45th day was a Saturday, complainant had
until Monday to contact the counselor. Thus, her contact of November 24,
2008 is timely. Further, the Commission finds that complainant intended
to raise the basis of reprisal with respect to this claim. That portion
of the complaint is remanded for further processing as set forth below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
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 (K0408)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409. | Becki F. Dornton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091166
Agency No. 4J493007108
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 5, 2008, dismissing her 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. 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, in part.
In a complaint dated November 24, 2008, complainant alleged that she was
subjected to discrimination on the bases of sex (female) and age (47) when
she had to take a typing test to re-qualify for a job she had been doing
for 14 years, and when her job was abolished around October 1, 2008.
In her formal complaint, complainant clearly states that there was a
previous grievance settlement stating she would not have to take a typing
test for the same job. Thus, to that extent, the Commission has held that
an employee cannot use the EEO complaint process to lodge a collateral
attack on another proceeding. See Wills v. Department of Defense, EEOC
Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal
Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v.
United States Postal Service, EEOC Request No. 05930106 (June 25, 1993).
The proper forum for complainant to have raised her challenges to actions
which were covered in a grievance proceeding is within that proceeding
itself. The agency's dismissal regarding the typing test is affirmed.
Regarding the issue of her job being abolished or reverted, complainant
states that in an October 8, 2008 redress meeting she was told that
the actions were undertaken because of her EEO complaint. It was at
that time complainant learned her EEO activity was a factor in her job
abolishment. Complainant added that claim in her EEO complaint on Monday,
November 24, 2008, which is the date the agency states she filed her
formal complaint. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires
that complaints of discrimination should be brought to the attention
of the Equal Employment Opportunity Counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the
case of a personnel action, within forty-five (45) days of the effective
date of the action. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the forty-five (45) day limitation period is triggered. See Howard
v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999).
Thus, the time limitation is not triggered until a complainant reasonably
suspects discrimination, but before all the facts that support a charge
of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. In the instant case, complainant did not find out
until October 8, 2008 that her EEO activity was a factor in the decision
to abolish her job. Because the 45th day was a Saturday, complainant had
until Monday to contact the counselor. Thus, her contact of November 24,
2008 is timely. Further, the Commission finds that complainant intended
to raise the basis of reprisal with respect to this claim. That portion
of the complaint is remanded for further processing as set forth below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
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 (K0408)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1008)
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
March 31, 2009
__________________
Date
| [
"Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998)",
"Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994)",
"Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993)",
"Howard v. Department of the Navy, EEOC Request No. 0597... | [
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4,958 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120091156.txt | 0120091156.txt | TXT | text/plain | 10,107 | Chris D. Daniels, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | December 8, 2008 | Appeal Number: 0120091156 | Chris D. Daniels,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091156
Agency No. 4H-310-0004-09
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD)
dated December 8, 2008, 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. In his complaint, complainant alleged that he was subjected
to discrimination on the bases of race/color (Caucasian/white), religion
(Christian-Methodist), disability, and reprisal for prior protected EEO
activity when:
1. on October 4, 2008, management delayed his obtaining emergency medical
care,
2. he was issued a letter of warning dated October 30, 2008, and
3. on unspecified date(s), he was not allowed to work as many hours as
less senior employees.
On October 4, 2008, while complainant was out delivering mail using a
vehicle, his wife called an agency supervisor and said she was taking
her husband to the emergency room. According to complainant, the
supervisor responded by saying complainant could not leave until the
mail was secured by a postal official and the supervisor did not arrive
until 45 minutes later. Complainant and his wife then allegedly went
to the hospital. When complainant was asked in an agency investigative
interview about the event, he declined to answer questions which would
elicit information on the medical incident.
The October 30, 2008, letter of warning charged complainant with improper
conduct and unsatisfactory performance. While not artfully written, it
appeared to be grounded in complainant not notifying management of his
situation and taking appropriate steps to secure the mail. The agency
expunged the letter of warning by November 13, 2008.
The FAD dismissed claim 2 for failure to state a claim. 29 C.F.R. §
1614.107(a)(1). It reasoned that the letter of warning was expunged.
It dismissed claim 1 for failure to state a claim, reasoning it was
inextricably intertwined with claim 2. The FAD dismissed claim 3 for
raising a matter that was not brought to the attention of an EEO counselor
and was not like or related to a matter that has been brought to the
attention of an EEO counselor. 29 C.F.R. § 1614.107(a)(1). It also
dismissed claim 3 for failure to state a claim. It reasoned, in part,
that the claim was not sufficiently precise to permit processing.
On appeal complainant argues, through his representative, that while
on his route on October 4, 2008, he experienced physical discomfort and
mental disorientation, and was able to contact his wife on his cell phone.
He argues that the supervisor telling his wife to stay there until
she arrived before taking complainant to the emergency room states a
claim of harm. He argues that the letter of warning was without merit.
He restates claim 3, but provides no additional detail. In opposition
to the appeal, the agency argues that the FAD should be affirmed.
We find that the letter of warning, claim 2, was properly dismissed for
failure to state a claim because it was rescinded before the filing of
the formal complaint dated November 24, 2008. See Stevenson v. United
States Postal Service, EEOC Appeal No. 01A52057 (April 27, 2005)
(affirmed dismissal for failure to state a claim of a complaint alleging
discriminatory seven day suspension where via a grievance settlement,
the suspension was rescinded prior to the filing of the formal complaint);
Sowell v. United States Postal Service, EEOC Appeal No. 01A45473 (November
24, 2004) (affirmed dismissal for failure to state a claim of a complaint
alleging discriminatory notice of medical separation where via a grievance
settlement, the notice was rescinded prior to the filing of the formal
complaint).
We turn to claim 1. In Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings
Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is sufficiently severe or pervasive to alter the conditions of
the complainant's employment. The Court explained that an "objectively
hostile or abusive work environment [is created when] a reasonable person
would find [it] hostile or abusive" and the complainant subjectively
perceives it as such. Harris, supra at 21-22. A claim of harassment is
actionable if the harassment to which the complainant has allegedly been
subjected is sufficiently severe or pervasive to alter the conditions
of the complainant's employment.
Complainant does not contend that the delay in going to the hospital
worsened his condition, or that a like incident had happened before
or since. We find that this isolated incident was not of sufficient
severity to state a claim of harassment or otherwise state a claim.
Gutierrez v. United States Postal Service, EEOC Appeal No. 01A24457
(December 10, 2002) (dismissed for failure to state a claim complaint that
complainant was discriminated against in violation of Title VII and the
Rehabilitation act when she was not given prompt medical attention after
a package with possibly contaminated blood got on her hand. Complainant
did not show she suffered a personal harm or loss to a term, condition,
or privilege of her employment as a result of the delayed attention).
We also find that the delay in the instant case would not reasonably
likely deter protected EEO activity.
We disagree with the finding in the FAD that complainant did not raise
claim 3 with the EEO counselor. The counselor's report, at the top of
page 3, shows he discussed this matter with the counselor. However,
we agree with the FAD that it fails to state a claim because the
claim is vague. Complainant gave no dates or range of dates, does not
state what work he was denied, or any other particularized information.
This is insufficient to permit an investigation into the merits of claim.
Further, complainant did provide any specificity on appeal, even though
the FAD stated the claim should be dismissed for being vague.
The FAD is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
June 9, 2009
__________________
Date
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4,959 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120091121.txt | 0120091121.txt | TXT | text/plain | 10,707 | Illen Tesfazion, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency. | December 15, 2008 | Appeal Number: 0120091121
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
final decision dated December 15, 2008, dismissing her 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.
Legal Analysis:
Upon review, the Commission finds that complainant's complaint was
improperly dismissed for untimely EEO Counselor contact.
During the relevant period, complainant was employed as a POL/ECON
Specialist at a U.S. Embassy in Eritrea. On June 9, 20081, complainant
initiated EEO contact alleging that the agency discriminated against
her on the bases of race (African-American), national origin (African),
and color (Black) when the agency did not pay her the same salary as her
predecessor, who was deemed an "eligible family member," after she took on
that person's duties. Complainant filed a formal EEO complaint alleging
the same. Complainant stated that she began performing the additional
duties of the SSH/DHRF Coordinator position at the end of January 2008
and thought it would be a temporary change only. She stated that she
inquired about additional pay when the duties change lasted longer than
she expected. Initially, the agency accepted complainant's claim for
investigation.
On December 15, the agency issued a final decision dismissing
complainant's claim pursuant to 29 C.F.R. § 1614.107(a)(2). The agency
indicated that complainant was aware, in 2004, as she acknowledged
in an investigative affidavit, that direct hires for the agency were
paid different from local agency hires. The agency stated, hence,
her July 19, 2008 initial EEO contact is untimely. The instant appeal
from complainant followed. On appeal, complainant stated that the
discrimination against her is ongoing because the agency continues to
pay her three to four times less than her predecessor.
The Lilly Ledbetter Fair Pay Act of 2009, Public Law 111-2 (S 181),
became law on January 29, 2009. The Act is effective May 28, 2007, and
applies to all claims of discrimination in compensation under Title VII,
the ADEA, and Title I and Section 503 of the Americans with Disabilities
Act of 1990 and Sections 501 and 504 of the Rehabilitation Act pending
on or after that date. Regarding Title VII, it provides:
[A]n unlawful employment practice occurs, with respect to discrimination
in compensation in violation of this title, when a discriminatory
compensation decision or other practice is adopted, when an individual
becomes subject to a discriminatory compensation decision or other
practice, or when an individual is affected by application of a
discriminatory compensation decision or other practice, including each
time wages, benefits, or other compensation is paid, resulting in whole or
in part from such a decision or other practice . . . [Relief may include]
recovery of back pay for up to two years preceding the filing of the
charge, where the unlawful employment practices that have occurred during
the charge filing period are similar or related to unlawful employment
practices with regard to discrimination in compensation that occurred
outside the time for filing a charge.
Here, complainant contends that the discrimination continues because
she is still paid less than her predecessor. In light of the fact
that the agency issued its dismissal decision in December 2008, before
the passage of the Lilly Ledbetter Fair Pay Act, we are vacating the
agency's dismissal and remanding the complaint for consideration of the
implications of that Act on this case. | Illen Tesfazion,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120091121
Agency No. DOS-F-093-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated December 15, 2008, dismissing her 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.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed for untimely EEO Counselor contact.
During the relevant period, complainant was employed as a POL/ECON
Specialist at a U.S. Embassy in Eritrea. On June 9, 20081, complainant
initiated EEO contact alleging that the agency discriminated against
her on the bases of race (African-American), national origin (African),
and color (Black) when the agency did not pay her the same salary as her
predecessor, who was deemed an "eligible family member," after she took on
that person's duties. Complainant filed a formal EEO complaint alleging
the same. Complainant stated that she began performing the additional
duties of the SSH/DHRF Coordinator position at the end of January 2008
and thought it would be a temporary change only. She stated that she
inquired about additional pay when the duties change lasted longer than
she expected. Initially, the agency accepted complainant's claim for
investigation.
On December 15, the agency issued a final decision dismissing
complainant's claim pursuant to 29 C.F.R. § 1614.107(a)(2). The agency
indicated that complainant was aware, in 2004, as she acknowledged
in an investigative affidavit, that direct hires for the agency were
paid different from local agency hires. The agency stated, hence,
her July 19, 2008 initial EEO contact is untimely. The instant appeal
from complainant followed. On appeal, complainant stated that the
discrimination against her is ongoing because the agency continues to
pay her three to four times less than her predecessor.
The Lilly Ledbetter Fair Pay Act of 2009, Public Law 111-2 (S 181),
became law on January 29, 2009. The Act is effective May 28, 2007, and
applies to all claims of discrimination in compensation under Title VII,
the ADEA, and Title I and Section 503 of the Americans with Disabilities
Act of 1990 and Sections 501 and 504 of the Rehabilitation Act pending
on or after that date. Regarding Title VII, it provides:
[A]n unlawful employment practice occurs, with respect to discrimination
in compensation in violation of this title, when a discriminatory
compensation decision or other practice is adopted, when an individual
becomes subject to a discriminatory compensation decision or other
practice, or when an individual is affected by application of a
discriminatory compensation decision or other practice, including each
time wages, benefits, or other compensation is paid, resulting in whole or
in part from such a decision or other practice . . . [Relief may include]
recovery of back pay for up to two years preceding the filing of the
charge, where the unlawful employment practices that have occurred during
the charge filing period are similar or related to unlawful employment
practices with regard to discrimination in compensation that occurred
outside the time for filing a charge.
Here, complainant contends that the discrimination continues because
she is still paid less than her predecessor. In light of the fact
that the agency issued its dismissal decision in December 2008, before
the passage of the Lilly Ledbetter Fair Pay Act, we are vacating the
agency's dismissal and remanding the complaint for consideration of the
implications of that Act on this case.
Accordingly, we VACATE the final agency decision and REMAND the matter
to the agency for further processing consistent with this decision and
Order below.
ORDER
The agency is ordered to reconsider its dismissal of the complaint
in light of the passage of the Lilly Ledbetter Fair Pay Act of 2009,
and either issue a new dismissal decision with appeal rights to the
Commission or an acceptance letter within thirty (30) calendar days of
the date this decision becomes final. Accepted claims shall be processed
in accordance with 29 C.F.R. § 1614.108 et seq., including issuing
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 (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (R0408)
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 (Z1008)
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
June 16, 2009
__________________
Date
1 We note that the Initial Contact Sheet indicates a contact date of June
9, 2008, and the EEO Counselor's Report indicates a June 19 contact date
and a counselor assigned date of June 18.
??
??
??
??
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4,960 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120091093.txt | 0120091093.txt | TXT | text/plain | 10,951 | Laraine K. Pruett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | December 20, 2008 | Appeal Number: 0120091093
Complaint Allegations:
In her complaint, complainant alleged that she was subjected to discrimination on the bases of race (Asian/Japanese), sex (female), color (yellow), disability (diabetes, arthritis), age (52), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when she was placed on administrative leave with pay on May 1, 2008, and when she received a notice of proposed removal on November 6, 2008. In its final decision, the agency dismissed the claim concerning administrative leave pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The agency dismissed the claim concerning the notice of proposed removal pursuant to 29 C.F.R. § 1614.107(a)(5), as a preliminary step to taking a personnel action. The instant appeal followed. With respect to being placed on administrative leave, EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The record in this case discloses that the alleged discriminatory event occurred on May 1, 2008, but complainant did not initiate contact with an EEO Counselor until September 5, 2008, which is 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. Regarding the proposed removal, the regulation set forth at 29 C.F.R. § 1614.107(a)(5) provides, in part, that the agency shall dismiss a complaint that alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory. The record indicates that complainant has not yet been removed. However, we note that complainant alleged unlawful retaliation for prior EEO activity as one of the bases of her complaint. The anti-retaliation provisions of the employment discrimination statutes seek to prevent an employer from interfering with an employee's efforts to secure or advance enforcement of the statutes' basic guarantees, and are not limited to actions affecting employment terms and conditions. Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. ____, 126 S. Ct. 2405 (2006). To state a viable claim of retaliation, complainant must allege that: 1) s/he was subjected to an action which a reasonable employee would have found materially adverse, and 2) the action could dissuade a reasonable employee from making or supporting a charge of discrimination. Id. While trivial harms would not satisfy the initial prong of this inquiry, the significance of the act of alleged retaliation will often depend upon the particular circumstances. See also EEOC Compliance Manual, No. 915.003 (May 20, 1998) (any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity states a claim). In this case, we conclude that receipt of a notice of proposed removal states a viable claim of reprisal. We also note that on appeal complainant alleged that the agency used the proposed removal to try to force complainant to accept a reassignment to a different position without commensurate pay. Accordingly, the agency's final decision dismissing complainant's claim concerning being placed on administrative leave is affirmed, but her claim concerning issuance of the proposed removal is reversed. The complaint is remanded to the agency for further processing in accordance with the following Order. ORDER (E0408)
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 20, 2008, dismissing her 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race (Asian/Japanese), sex (female), color
(yellow), disability (diabetes, arthritis), age (52), and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act
of 1964 when she was placed on administrative leave with pay on May 1,
2008, and when she received a notice of proposed removal on November 6,
2008. In its final decision, the agency dismissed the claim concerning
administrative leave pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely
EEO Counselor contact. The agency dismissed the claim concerning the
notice of proposed removal pursuant to 29 C.F.R. § 1614.107(a)(5), as
a preliminary step to taking a personnel action. The instant appeal
followed.
With respect to being placed on administrative leave,
Legal Analysis:
EEOC Regulation
29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination
should be brought to the attention of the Equal Employment Opportunity
Counselor within forty-five (45) days of the date of the matter alleged to
be discriminatory or, in the case of a personnel action, within forty-five
(45) days of the effective date of the action. The record in this case
discloses that the alleged discriminatory event occurred on May 1, 2008,
but complainant did not initiate contact with an EEO Counselor until
September 5, 2008, which is 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.
Regarding the proposed removal, the regulation set forth at 29
C.F.R. § 1614.107(a)(5) provides, in part, that the agency shall
dismiss a complaint that alleges that a proposal to take a personnel
action, or other preliminary step to taking a personnel action,
is discriminatory. The record indicates that complainant has not
yet been removed. However, we note that complainant alleged unlawful
retaliation for prior EEO activity as one of the bases of her complaint.
The anti-retaliation provisions of the employment discrimination statutes
seek to prevent an employer from interfering with an employee's efforts
to secure or advance enforcement of the statutes' basic guarantees, and
are not limited to actions affecting employment terms and conditions.
Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. ____, 126
S. Ct. 2405 (2006). To state a viable claim of retaliation, complainant
must allege that: 1) s/he was subjected to an action which a reasonable
employee would have found materially adverse, and 2) the action could
dissuade a reasonable employee from making or supporting a charge of
discrimination. Id. While trivial harms would not satisfy the initial
prong of this inquiry, the significance of the act of alleged retaliation
will often depend upon the particular circumstances. See also EEOC
Compliance Manual, No. 915.003 (May 20, 1998) (any adverse treatment
that is based upon a retaliatory motive and is reasonably likely to
deter the charging party or others from engaging in protected activity
states a claim). In this case, we conclude that receipt of a notice of
proposed removal states a viable claim of reprisal. We also note that
on appeal complainant alleged that the agency used the proposed removal
to try to force complainant to accept a reassignment to a different
position without commensurate pay.
Final Decision:
Accordingly, the agency's final decision dismissing complainant's claim concerning being placed on administrative leave is affirmed, but her claim concerning issuance of the proposed removal is reversed. | Laraine K. Pruett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091093
Agency No. 4E800026408
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 20, 2008, dismissing her 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
In her complaint, complainant alleged that she was subjected to
discrimination on the bases of race (Asian/Japanese), sex (female), color
(yellow), disability (diabetes, arthritis), age (52), and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act
of 1964 when she was placed on administrative leave with pay on May 1,
2008, and when she received a notice of proposed removal on November 6,
2008. In its final decision, the agency dismissed the claim concerning
administrative leave pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely
EEO Counselor contact. The agency dismissed the claim concerning the
notice of proposed removal pursuant to 29 C.F.R. § 1614.107(a)(5), as
a preliminary step to taking a personnel action. The instant appeal
followed.
With respect to being placed on administrative leave, EEOC Regulation
29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination
should be brought to the attention of the Equal Employment Opportunity
Counselor within forty-five (45) days of the date of the matter alleged to
be discriminatory or, in the case of a personnel action, within forty-five
(45) days of the effective date of the action. The record in this case
discloses that the alleged discriminatory event occurred on May 1, 2008,
but complainant did not initiate contact with an EEO Counselor until
September 5, 2008, which is 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.
Regarding the proposed removal, the regulation set forth at 29
C.F.R. § 1614.107(a)(5) provides, in part, that the agency shall
dismiss a complaint that alleges that a proposal to take a personnel
action, or other preliminary step to taking a personnel action,
is discriminatory. The record indicates that complainant has not
yet been removed. However, we note that complainant alleged unlawful
retaliation for prior EEO activity as one of the bases of her complaint.
The anti-retaliation provisions of the employment discrimination statutes
seek to prevent an employer from interfering with an employee's efforts
to secure or advance enforcement of the statutes' basic guarantees, and
are not limited to actions affecting employment terms and conditions.
Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. ____, 126
S. Ct. 2405 (2006). To state a viable claim of retaliation, complainant
must allege that: 1) s/he was subjected to an action which a reasonable
employee would have found materially adverse, and 2) the action could
dissuade a reasonable employee from making or supporting a charge of
discrimination. Id. While trivial harms would not satisfy the initial
prong of this inquiry, the significance of the act of alleged retaliation
will often depend upon the particular circumstances. See also EEOC
Compliance Manual, No. 915.003 (May 20, 1998) (any adverse treatment
that is based upon a retaliatory motive and is reasonably likely to
deter the charging party or others from engaging in protected activity
states a claim). In this case, we conclude that receipt of a notice of
proposed removal states a viable claim of reprisal. We also note that
on appeal complainant alleged that the agency used the proposed removal
to try to force complainant to accept a reassignment to a different
position without commensurate pay.
Accordingly, the agency's final decision dismissing complainant's claim
concerning being placed on administrative leave is affirmed, but her claim
concerning issuance of the proposed removal is reversed. The complaint
is remanded to the agency for further processing in accordance with the
following Order.
ORDER (E0408)
The agency is ordered to process the remanded claim (proposed removal)
in accordance with 29 C.F.R. § 1614.108 et seq. 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 (K0408)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (R0408)
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 (Z1008)
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
March 31, 2009
__________________
Date
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4,961 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120090985.txt | 0120090985.txt | TXT | text/plain | 11,080 | Jennifer A. Dyer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | November 25, 2008 | Appeal Number: 0120090985
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 25, 2008, dismissing her 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.
Legal Analysis:
Upon review, the Commission finds that complainant's complaint was
properly dismissed.
On January 16, 2007, complainant entered into an agreement with the
agency to perform cleaning services at the New Johnsonville, Tennessee
postal facility. In the agreement, complainant, characterized as the
"supplier," affirmatively acknowledged that she was performing the
cleaning services as an independent contractor and not an employee of
the agency. The agreement was scheduled to expire in January 2009, unless
terminated earlier by either party on 30 days notice, or for cause by the
agency. The record establishes that complainant terminated the agreement
effective April 4, 2008, prior to the January 2009 expiration date.
On August 24, 2008, nearly five months after she terminated her services
under the agreement, complainant initiated contact with an agency
EEO counselor alleging that beginning in February 2008 and continuing
through her resignation in April 2008, she was subjected to ongoing
sexual harassment by an agency manager (RMO). Complainant asserted
that she terminated her services before the expiration of her contract
because of the harassment. On November 6, 2008, when the matter could
not be resolved informally, complainant filed a formal EEO complaint.
In a decision dated November 25, 2008, the agency dismissed the
complaint asserting complainant lacked standing to file a complaint
under 29 C.F.R. Part 1614 because she was an independent contractor,
not an employee. The agency also dismissed the matter for untimely
EEO counselor contact, noting complainant's initial contact was beyond
the requisite 45-day limitation period. In support of this claim, the
agency provided an affidavit from an agency manager averring that there
was an EEO poster in complainant's work area that advised employees of
the 45-day limitation period. A copy of the poster was also submitted
in the record. The instant appeal from complainant followed.
The matter before us is whether the agency properly dismissed
complainant's complaint. EEOC Regulation 29 C.F.R. §1614.103(a)
provides that complaints of employment discrimination shall be processed
in accordance with Part 1614 of the EEOC regulations. EEOC Regulation
29 C.F.R. § 1614.103(c) provides that within the covered departments,
agencies and units, Part 1614 applies to all "employees and applicants
for employment."
The Commission has applied the common law of agency test to determine
whether an individual is an agency employee versus an independent
contractor. See Ma v. Department of Health and Human Services, EEOC
Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual
Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992).
The question of whether an employer-employee relationship exists
is fact-specific and depends on whether the employer controls the
means and manner of the worker's work performance. This determination
requires consideration of all aspects of the worker's relationship with
the employer. Factors indicating that a worker is in an employment
relationship with an employer include the following:
The employer has the right to control when, where, and how the
worker performs the job.
The work does not require a high level of skill or expertise.
The employer furnishes the tools, materials, and
equipment.
The work is performed on the employer's premises.
There is a continuing relationship between the worker and the
employer.
The employer has the right to assign additional projects to the
worker.
The employer sets the hours of work and the duration of
the job.
The worker is paid by the hour, week, or month rather than the
agreed cost of performing a particular job.
The worker does not hire and pay assistants.
The work performed by the worker is part of the regular business
of the employer.
The worker is not engaged in his/her own distinct occupation or
business.
The employer provides the worker with benefits such as insurance,
leave, or workers' compensation.
The worker is considered an employee of the employer for tax
purposes (i.e., the employer withholds federal, state, and Social Security
taxes).
The employer can discharge the worker.
The worker and the employer believe that they are creating an
employer-employee relationship.
This list is not exhaustive. Not all or even a majority of the listed
criteria need be met. Rather, the determination must be based on all of
the circumstances in the relationship between the parties, regardless
of whether the parties refer to it as an employee or as an independent
contractor relationship. EEOC Compliance Manual, Section 2: Threshold
Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000) (available at
www.eeoc.gov).
In the instant case, the file includes a copy of the contract between
complainant and the agency that explicitly states complainant is an
independent contractor and not an agency employee. Complainant argues
that, despite this language in the agreement, she was a de facto agency
employee because she performed her duties at the agency's facility
under the direct supervision of RMO, an agency manager. She noted,
for example, that he was able to alter her start time from 11 a.m. to
1 p.m. However, many other factors support the characterization of
complainant as an independent contractor. According to the contract,
complainant was paid a flat rate on a biweekly basis and no taxes or other
deductions were made. Complainant also did not accumulate any benefits.
Moreover, complainant's cleaning duties were of the basic skill level
sold in the commercial marketplace and were not directly related to
the primary business of the agency (postal services). Finally, either
party could terminate the agreement with 30 days notice to the other.
After carefully balancing these factors in accordance with the principles
discussed above, the Commission finds that complainant was an independent
contractor, not an employee of the agency. As such, she has no standing
to file a complaint under the 29 C.F.R. Part 1614 process.1 As we are
affirming the agency's dismissal on these grounds, it is unnecessary
for us to address the agency's alternative dismissal for untimely EEO
counselor contact.
Final Decision:
Accordingly, the agency's final decision dismissing complainant's complaint is affirmed. | Jennifer A. Dyer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090985
Agency No. 4H370014408
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 25, 2008, dismissing her 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed.
On January 16, 2007, complainant entered into an agreement with the
agency to perform cleaning services at the New Johnsonville, Tennessee
postal facility. In the agreement, complainant, characterized as the
"supplier," affirmatively acknowledged that she was performing the
cleaning services as an independent contractor and not an employee of
the agency. The agreement was scheduled to expire in January 2009, unless
terminated earlier by either party on 30 days notice, or for cause by the
agency. The record establishes that complainant terminated the agreement
effective April 4, 2008, prior to the January 2009 expiration date.
On August 24, 2008, nearly five months after she terminated her services
under the agreement, complainant initiated contact with an agency
EEO counselor alleging that beginning in February 2008 and continuing
through her resignation in April 2008, she was subjected to ongoing
sexual harassment by an agency manager (RMO). Complainant asserted
that she terminated her services before the expiration of her contract
because of the harassment. On November 6, 2008, when the matter could
not be resolved informally, complainant filed a formal EEO complaint.
In a decision dated November 25, 2008, the agency dismissed the
complaint asserting complainant lacked standing to file a complaint
under 29 C.F.R. Part 1614 because she was an independent contractor,
not an employee. The agency also dismissed the matter for untimely
EEO counselor contact, noting complainant's initial contact was beyond
the requisite 45-day limitation period. In support of this claim, the
agency provided an affidavit from an agency manager averring that there
was an EEO poster in complainant's work area that advised employees of
the 45-day limitation period. A copy of the poster was also submitted
in the record. The instant appeal from complainant followed.
The matter before us is whether the agency properly dismissed
complainant's complaint. EEOC Regulation 29 C.F.R. §1614.103(a)
provides that complaints of employment discrimination shall be processed
in accordance with Part 1614 of the EEOC regulations. EEOC Regulation
29 C.F.R. § 1614.103(c) provides that within the covered departments,
agencies and units, Part 1614 applies to all "employees and applicants
for employment."
The Commission has applied the common law of agency test to determine
whether an individual is an agency employee versus an independent
contractor. See Ma v. Department of Health and Human Services, EEOC
Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual
Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992).
The question of whether an employer-employee relationship exists
is fact-specific and depends on whether the employer controls the
means and manner of the worker's work performance. This determination
requires consideration of all aspects of the worker's relationship with
the employer. Factors indicating that a worker is in an employment
relationship with an employer include the following:
The employer has the right to control when, where, and how the
worker performs the job.
The work does not require a high level of skill or expertise.
The employer furnishes the tools, materials, and
equipment.
The work is performed on the employer's premises.
There is a continuing relationship between the worker and the
employer.
The employer has the right to assign additional projects to the
worker.
The employer sets the hours of work and the duration of
the job.
The worker is paid by the hour, week, or month rather than the
agreed cost of performing a particular job.
The worker does not hire and pay assistants.
The work performed by the worker is part of the regular business
of the employer.
The worker is not engaged in his/her own distinct occupation or
business.
The employer provides the worker with benefits such as insurance,
leave, or workers' compensation.
The worker is considered an employee of the employer for tax
purposes (i.e., the employer withholds federal, state, and Social Security
taxes).
The employer can discharge the worker.
The worker and the employer believe that they are creating an
employer-employee relationship.
This list is not exhaustive. Not all or even a majority of the listed
criteria need be met. Rather, the determination must be based on all of
the circumstances in the relationship between the parties, regardless
of whether the parties refer to it as an employee or as an independent
contractor relationship. EEOC Compliance Manual, Section 2: Threshold
Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000) (available at
www.eeoc.gov).
In the instant case, the file includes a copy of the contract between
complainant and the agency that explicitly states complainant is an
independent contractor and not an agency employee. Complainant argues
that, despite this language in the agreement, she was a de facto agency
employee because she performed her duties at the agency's facility
under the direct supervision of RMO, an agency manager. She noted,
for example, that he was able to alter her start time from 11 a.m. to
1 p.m. However, many other factors support the characterization of
complainant as an independent contractor. According to the contract,
complainant was paid a flat rate on a biweekly basis and no taxes or other
deductions were made. Complainant also did not accumulate any benefits.
Moreover, complainant's cleaning duties were of the basic skill level
sold in the commercial marketplace and were not directly related to
the primary business of the agency (postal services). Finally, either
party could terminate the agreement with 30 days notice to the other.
After carefully balancing these factors in accordance with the principles
discussed above, the Commission finds that complainant was an independent
contractor, not an employee of the agency. As such, she has no standing
to file a complaint under the 29 C.F.R. Part 1614 process.1 As we are
affirming the agency's dismissal on these grounds, it is unnecessary
for us to address the agency's alternative dismissal for untimely EEO
counselor contact.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
March 25, 2009
__________________
Date
1 We caution the agency, however, that light of its affirmative duty
to provide a harassment-free workplace, it should conduct an internal
inquiry into complainant's allegations that one of its managers engaged
in on-going sexual harassment, which she alleged was also directed at a
number of other female agency employees, and take immediate and effective
steps to prevent any further harassment from occurring.
??
??
??
??
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4,962 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120090366.txt | 0120090366.txt | TXT | text/plain | 10,208 | Gary E. Hearn, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | September 22, 2008 | Appeal Number: 0120090366
Complaint Allegations:
In his complaint, complainant alleged that he was subjected to discrimination on the bases of sex (male) and age (65). The agency identified the claims as: (1) from February 23, 2008 to March 7, 2008, during the mail count, complainant's route was not counted properly resulting in a loss of 10-11 hours per week, and complainant was rebuked and screamed at; (2) from May 10, 2007 to November 23, 2007, "the Meadows" was removed from complainant's route and assigned to a younger female carrier; and (3) on unspecified dates, Management did not follow leave policies and return complainant's leave slips in a timely manner. The agency dismissed all three claims, stating that the latest identified alleged discriminatory event occurred on March 7, 2008, but complainant did not initiate contact with an EEO Counselor until May 12, 2008, which is beyond the forty-five (45) day limitation period. The instant appeal followed. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. With regard to claim 1, while the agency counted the 45-day period from March 7, 2008, the record indicates that the results of the route count actually became effective on April 28, 2008, and this is when complainant alleges he started to lose about 10 hours of work a week. Complainant's May 12 EEO counselor contact was within 45 days of this effective date. As such, his EEO counselor contact on that issue is timely. However, with respect to claim 2, the Commission affirms the agency's finding of untimely EEO counselor contact as the alleged events (May-November 2007) occurred well before complainant's initial contact (May 12, 2008) with the counselor. Finally, with respect to claim 3, no dates were identified by complainant so it is impossible to determine the timeliness of this claim. However, the Commission finds that the claim, as currently articulated in the record, fails to state a claim under the EEOC regulations because complainant has not alleged 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Accordingly, the agency's final decision dismissing complainant's complaint is affirmed in part and reversed in part. Claim 1 is remanded for processing in accordance with the following Order. ORDER (E0408)
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 22, 2008, 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.
Legal Analysis:
Upon review, the Commission finds that a portion
of complainant's complaint was improperly dismissed pursuant to 29
C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of sex (male) and age (65). The agency
identified the claims as: (1) from February 23, 2008 to March 7, 2008,
during the mail count, complainant's route was not counted properly
resulting in a loss of 10-11 hours per week, and complainant was rebuked
and screamed at; (2) from May 10, 2007 to November 23, 2007, "the Meadows"
was removed from complainant's route and assigned to a younger female
carrier; and (3) on unspecified dates, Management did not follow leave
policies and return complainant's leave slips in a timely manner.
The agency dismissed all three claims, stating that the latest identified
alleged discriminatory event occurred on March 7, 2008, but complainant
did not initiate contact with an EEO Counselor until May 12, 2008, which
is beyond the forty-five (45) day limitation period. The instant appeal
followed.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
With regard to claim 1, while the agency counted the 45-day period from
March 7, 2008, the record indicates that the results of the route count
actually became effective on April 28, 2008, and this is when complainant
alleges he started to lose about 10 hours of work a week. Complainant's
May 12 EEO counselor contact was within 45 days of this effective date.
As such, his EEO counselor contact on that issue is timely.
However, with respect to claim 2, the Commission affirms the agency's
finding of untimely EEO counselor contact as the alleged events
(May-November 2007) occurred well before complainant's initial contact
(May 12, 2008) with the counselor. Finally, with respect to claim 3,
no dates were identified by complainant so it is impossible to determine
the timeliness of this claim. However, the Commission finds that the
claim, as currently articulated in the record, fails to state a claim
under the EEOC regulations because complainant has not alleged 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. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994). | Gary E. Hearn,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090366
Agency No. 4C150006008
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 22, 2008, 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. Upon review, the Commission finds that a portion
of complainant's complaint was improperly dismissed pursuant to 29
C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of sex (male) and age (65). The agency
identified the claims as: (1) from February 23, 2008 to March 7, 2008,
during the mail count, complainant's route was not counted properly
resulting in a loss of 10-11 hours per week, and complainant was rebuked
and screamed at; (2) from May 10, 2007 to November 23, 2007, "the Meadows"
was removed from complainant's route and assigned to a younger female
carrier; and (3) on unspecified dates, Management did not follow leave
policies and return complainant's leave slips in a timely manner.
The agency dismissed all three claims, stating that the latest identified
alleged discriminatory event occurred on March 7, 2008, but complainant
did not initiate contact with an EEO Counselor until May 12, 2008, which
is beyond the forty-five (45) day limitation period. The instant appeal
followed.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
With regard to claim 1, while the agency counted the 45-day period from
March 7, 2008, the record indicates that the results of the route count
actually became effective on April 28, 2008, and this is when complainant
alleges he started to lose about 10 hours of work a week. Complainant's
May 12 EEO counselor contact was within 45 days of this effective date.
As such, his EEO counselor contact on that issue is timely.
However, with respect to claim 2, the Commission affirms the agency's
finding of untimely EEO counselor contact as the alleged events
(May-November 2007) occurred well before complainant's initial contact
(May 12, 2008) with the counselor. Finally, with respect to claim 3,
no dates were identified by complainant so it is impossible to determine
the timeliness of this claim. However, the Commission finds that the
claim, as currently articulated in the record, fails to state a claim
under the EEOC regulations because complainant has not alleged 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. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed in part and reversed in part. Claim 1 is remanded
for processing in accordance with the following Order.
ORDER (E0408)
The agency is ordered to process the remanded claim 1 in accordance
with 29 C.F.R. § 1614.108 et seq. The agency shall acknowledge to the
complainant that it has received the remanded claim 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 (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1008)
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
January 30, 2009
__________________
Date
| [
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4,963 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120083682.txt | 0120083682.txt | TXT | text/plain | 10,783 | Claudia L. Malloy, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency. | July 24, 2008 | Appeal Number: 0120083682
Complaint Allegations:
In her complaint, complainant alleged that she was subjected to hostile workplace discrimination on the basis of reprisal for prior protected EEO activity under Title VII when: (1) from July 2007 through March 2008, her supervisor made several inappropriate, workplace remarks; and (2) in April 2008, her supervisor filed an Accountability Board claim against her alleging inappropriate hugging and touching. With regard to reprisal discrimination, the Commission has stated that the anti-reprisal provision of Title VII protects those who participate in the EEO process and also those who oppose discriminatory employment practices. Participation occurs when an employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing. Participation also occurs when an employee files a labor grievance, if the employee raised issues of unlawful employment discrimination in the grievance. . . . A variety of activities has been found to constitute opposition . . . . Because the enforcement of Title VII depends on the willingness of employees to oppose unlawful employment practices or policies, courts have interpreted section 704(a) of Title VII as intending to provide 'exceptionally broad protection to those who oppose such practices'. . . ." Whipple v. Department of Veterans Affairs, EEOC Request No. 05910784 (February 21, 1992) (citations omitted). We note that Title VII protects a person "where the employee has a reasonable, good faith belief that the challenged employment practice violates Title VII, even if the belief is later found to be mistaken. . . . The mistaken belief may be one of law or of fact." Whipple, supra, quoting Wolf v. J.I. Case Co., 617 F. Supp. 858, 868 (E.D. Wis. 1985). The Commission has also stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Service, EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. Concerning claim 1, complainant has not established, either in her formal complaint or on appeal, that she had engaged in any prior EEO activity. Therefore, the agency's dismissal of claim 1 was proper for failure to state a claim. Regarding claim 2, complainant argues in her appeal letter that after her "supervisor learned I had gone formal [EEO complaint] with my claim, he filed a Sexual Harassment claim against me. This is retaliation in its highest form and it has caused me much embarrassment and mental stress." The Commission find's that this is a viable claim of reprisal because complaint has cited her attempts to resolve claim 1 in this matter as her prior EEO activity. Thus, the agency's dismissal of claim 2 was improper and is reversed. Accordingly, the agency's final decision dismissing complainant's complaint is affirmed in part and reversed in part. The complaint is hereby remanded to the agency for further processing in accordance with this decision and the Order below. ORDER (E0408)
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 24, 2008, dismissing her 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.
Legal Analysis:
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim. In her complaint, complainant alleged that she was
subjected to hostile workplace discrimination on the basis of reprisal
for prior protected EEO activity under Title VII when: (1) from July 2007
through March 2008, her supervisor made several inappropriate, workplace
remarks; and (2) in April 2008, her supervisor filed an Accountability
Board claim against her alleging inappropriate hugging and touching.
With regard to reprisal discrimination, the Commission has stated that
the anti-reprisal provision of Title VII protects those who participate
in the EEO process and also those who oppose discriminatory employment
practices. Participation occurs when an employee has made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding or hearing. Participation also occurs when an employee files
a labor grievance, if the employee raised issues of unlawful employment
discrimination in the grievance. . . . A variety of activities has
been found to constitute opposition . . . . Because the enforcement of
Title VII depends on the willingness of employees to oppose unlawful
employment practices or policies, courts have interpreted section 704(a)
of Title VII as intending to provide 'exceptionally broad protection
to those who oppose such practices'. . . ." Whipple v. Department
of Veterans Affairs, EEOC Request No. 05910784 (February 21, 1992)
(citations omitted). We note that Title VII protects a person "where
the employee has a reasonable, good faith belief that the challenged
employment practice violates Title VII, even if the belief is later found
to be mistaken. . . . The mistaken belief may be one of law or of fact."
Whipple, supra, quoting Wolf v. J.I. Case Co., 617 F. Supp. 858, 868
(E.D. Wis. 1985).
The Commission has also stated that adverse actions need not qualify
as "ultimate employment actions" or materially affect the terms and
conditions of employment to constitute retaliation. Lindsey v. United
States Postal Service, EEOC Request No. 05980410 (Nov. 4, 1999)
(citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead,
the statutory retaliation clauses prohibit any adverse treatment that
is based upon a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity. Id.
Concerning claim 1, complainant has not established, either in her formal
complaint or on appeal, that she had engaged in any prior EEO activity.
Therefore, the agency's dismissal of claim 1 was proper for failure to
state a claim.
Regarding claim 2, complainant argues in her appeal letter that after her
"supervisor learned I had gone formal [EEO complaint] with my claim, he
filed a Sexual Harassment claim against me. This is retaliation in its
highest form and it has caused me much embarrassment and mental stress."
The Commission find's that this is a viable claim of reprisal because
complaint has cited her attempts to resolve claim 1 in this matter as
her prior EEO activity. Thus, the agency's dismissal of claim 2 was
improper and is reversed. | Claudia L. Malloy,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120083682
Agency No. 200821960FAA06
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 24, 2008, dismissing her 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.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim. In her complaint, complainant alleged that she was
subjected to hostile workplace discrimination on the basis of reprisal
for prior protected EEO activity under Title VII when: (1) from July 2007
through March 2008, her supervisor made several inappropriate, workplace
remarks; and (2) in April 2008, her supervisor filed an Accountability
Board claim against her alleging inappropriate hugging and touching.
With regard to reprisal discrimination, the Commission has stated that
the anti-reprisal provision of Title VII protects those who participate
in the EEO process and also those who oppose discriminatory employment
practices. Participation occurs when an employee has made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding or hearing. Participation also occurs when an employee files
a labor grievance, if the employee raised issues of unlawful employment
discrimination in the grievance. . . . A variety of activities has
been found to constitute opposition . . . . Because the enforcement of
Title VII depends on the willingness of employees to oppose unlawful
employment practices or policies, courts have interpreted section 704(a)
of Title VII as intending to provide 'exceptionally broad protection
to those who oppose such practices'. . . ." Whipple v. Department
of Veterans Affairs, EEOC Request No. 05910784 (February 21, 1992)
(citations omitted). We note that Title VII protects a person "where
the employee has a reasonable, good faith belief that the challenged
employment practice violates Title VII, even if the belief is later found
to be mistaken. . . . The mistaken belief may be one of law or of fact."
Whipple, supra, quoting Wolf v. J.I. Case Co., 617 F. Supp. 858, 868
(E.D. Wis. 1985).
The Commission has also stated that adverse actions need not qualify
as "ultimate employment actions" or materially affect the terms and
conditions of employment to constitute retaliation. Lindsey v. United
States Postal Service, EEOC Request No. 05980410 (Nov. 4, 1999)
(citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead,
the statutory retaliation clauses prohibit any adverse treatment that
is based upon a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity. Id.
Concerning claim 1, complainant has not established, either in her formal
complaint or on appeal, that she had engaged in any prior EEO activity.
Therefore, the agency's dismissal of claim 1 was proper for failure to
state a claim.
Regarding claim 2, complainant argues in her appeal letter that after her
"supervisor learned I had gone formal [EEO complaint] with my claim, he
filed a Sexual Harassment claim against me. This is retaliation in its
highest form and it has caused me much embarrassment and mental stress."
The Commission find's that this is a viable claim of reprisal because
complaint has cited her attempts to resolve claim 1 in this matter as
her prior EEO activity. Thus, the agency's dismissal of claim 2 was
improper and is reversed.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed in part and reversed in part. The complaint is
hereby remanded to the agency for further processing in accordance with
this decision and the Order below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
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 (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1008)
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
January 15, 2009
__________________
Date
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4,964 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120142297.txt | 0120142297.txt | TXT | text/plain | 9,939 | June 11, 2014 | Appeal Number: 0120142297
Background:
At the time of events giving rise her complaints, Complainant worked as a Paralegal Specialist, GS-11, at the Agency's Office of Border Patrol, Laredo Sector Headquarters, Asset Forfeiture Office in Laredo, Texas.
By email on March 20, 2014, Complainant filed Complaint 1 (HS-CPB-22594-2012) alleging that she was discriminated against based on her sex when she was harassed from April 27, 2012 through July 2, 2012. Examples of the alleged harassment included being belittled, yelled at and insulted by management for making an error, receiving a verbal and written counseling, being told her performance was deficient and scheduled for training for this reason, being scrutinized and monitored, and getting targeted for every little mistake she made.1
On March 20, 2014, Complainant filed formal complaint 2 (HS-CPB-22594-2012) by email alleging that she was discriminated against when she was harassed based on her sex and reprisal for prior protected EEO activity under Title VII when:
a. on July 31, 2013, she was issued a reprimand;
b. on August 30, 2013, she was assigned a task which prevented her from benefiting from the 59 minutes of administrative leave granted to her other colleague by the Supervisory Paralegal Specialist;
c. her activities are scrutinized;
d. she is required to submit memorandums regarding mistakes she makes;
e. she is never left in charge of the office in the absence of her supervisor and manager;
f. she does not receive assistance in completing her caseload during her absences from the office;
g. she must obtain supervisory approval before requesting assistance from the Mission Support Assistant; and
h. she is not permitted to finish her work when it is past 4 PM.2
The record shows that, following EEO counseling, on September 6, 2012, the Agency had sent Complainant a Notice of Right to File Discrimination on Complaint 1. The Agency also had sent Complainant a Notice of Right to File Discrimination, dated November 21, 2013, on Complaint 2. In both Notices, the Agency informed Complainant that she must file Complaint 1 within 15 calendar days of receipt of the Notice, and provided a physical and email addresses and facsimile number for doing so.
In March 2014, the Agency advised Complainant that she received the Notices of Right to File for Complaints 1 and 2, respectively, on September 6, 2012 and November 22, 2013, but did not file her complaints until March 20, 2014, well beyond the 15-day deadline. The Agency inquired why she waited until March 20, 2014.
Complainant responded by email that during EEO counseling Agency officials made unequivocal verbal assurances in both her EEO cases that settlement agreements would be reduced to writing for signatures, but they were never reduced to writing. She wrote that the Agency waited until the deadlines passed before reneging on entering into settlement agreements, and she relied on these assurances to her detriment.
On appeal, Complainant reiterates the above argument. She adds that she believed she should wait for the purported agreements to be reduced to writing because escalating her EEO cases to EEOC hearings or federal lawsuits would be unnecessary, disruptive, time consuming, expensive, and cause further damage to her relationship with Agency management. Complainant writes that she was not notified until March 5, 2014, that the Agency reneged on the promise to reduce the settlement agreements to writing.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) requires, in pertinent part, that an agency dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106. This regulation requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.
It is undisputed that Notice of Right to File for Complaints 1 and 2 that were received by Complainant on September 10, 2012, and November 22, 2013, respectively. Complainant acknowledges that she missed the 15-day filing deadlines, but asserts she waited based on assurances that settlement agreements would be reduced to writing.3
Waiting for a settlement agreement to occur is not an adequate reason not to timely file a formal complaint. Complainant's argument that she relied on the Agency's assurances to her detriment is unpersuasive because there was no promise by the Agency to settle the matters if she did not file formal complaints.
Final Decision:
Accordingly, the FAD is AFFIRMED. | Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120142297
Agency Nos. HS-CBP-22594-2012 & HS-CPB-22594-2012
DECISION
On June 11, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated June 9, 2014, dismissing her complaints 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.
BACKGROUND
At the time of events giving rise her complaints, Complainant worked as a Paralegal Specialist, GS-11, at the Agency's Office of Border Patrol, Laredo Sector Headquarters, Asset Forfeiture Office in Laredo, Texas.
By email on March 20, 2014, Complainant filed Complaint 1 (HS-CPB-22594-2012) alleging that she was discriminated against based on her sex when she was harassed from April 27, 2012 through July 2, 2012. Examples of the alleged harassment included being belittled, yelled at and insulted by management for making an error, receiving a verbal and written counseling, being told her performance was deficient and scheduled for training for this reason, being scrutinized and monitored, and getting targeted for every little mistake she made.1
On March 20, 2014, Complainant filed formal complaint 2 (HS-CPB-22594-2012) by email alleging that she was discriminated against when she was harassed based on her sex and reprisal for prior protected EEO activity under Title VII when:
a. on July 31, 2013, she was issued a reprimand;
b. on August 30, 2013, she was assigned a task which prevented her from benefiting from the 59 minutes of administrative leave granted to her other colleague by the Supervisory Paralegal Specialist;
c. her activities are scrutinized;
d. she is required to submit memorandums regarding mistakes she makes;
e. she is never left in charge of the office in the absence of her supervisor and manager;
f. she does not receive assistance in completing her caseload during her absences from the office;
g. she must obtain supervisory approval before requesting assistance from the Mission Support Assistant; and
h. she is not permitted to finish her work when it is past 4 PM.2
The record shows that, following EEO counseling, on September 6, 2012, the Agency had sent Complainant a Notice of Right to File Discrimination on Complaint 1. The Agency also had sent Complainant a Notice of Right to File Discrimination, dated November 21, 2013, on Complaint 2. In both Notices, the Agency informed Complainant that she must file Complaint 1 within 15 calendar days of receipt of the Notice, and provided a physical and email addresses and facsimile number for doing so.
In March 2014, the Agency advised Complainant that she received the Notices of Right to File for Complaints 1 and 2, respectively, on September 6, 2012 and November 22, 2013, but did not file her complaints until March 20, 2014, well beyond the 15-day deadline. The Agency inquired why she waited until March 20, 2014.
Complainant responded by email that during EEO counseling Agency officials made unequivocal verbal assurances in both her EEO cases that settlement agreements would be reduced to writing for signatures, but they were never reduced to writing. She wrote that the Agency waited until the deadlines passed before reneging on entering into settlement agreements, and she relied on these assurances to her detriment.
On appeal, Complainant reiterates the above argument. She adds that she believed she should wait for the purported agreements to be reduced to writing because escalating her EEO cases to EEOC hearings or federal lawsuits would be unnecessary, disruptive, time consuming, expensive, and cause further damage to her relationship with Agency management. Complainant writes that she was not notified until March 5, 2014, that the Agency reneged on the promise to reduce the settlement agreements to writing.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) requires, in pertinent part, that an agency dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106. This regulation requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.
It is undisputed that Notice of Right to File for Complaints 1 and 2 that were received by Complainant on September 10, 2012, and November 22, 2013, respectively. Complainant acknowledges that she missed the 15-day filing deadlines, but asserts she waited based on assurances that settlement agreements would be reduced to writing.3
Waiting for a settlement agreement to occur is not an adequate reason not to timely file a formal complaint. Complainant's argument that she relied on the Agency's assurances to her detriment is unpersuasive because there was no promise by the Agency to settle the matters if she did not file formal complaints.
Accordingly, the FAD 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
October 30, 2014
__________________
Date
1 The Agency defined the complaint as concerning harassment from April 27, 2012 through June 11, 2012. A review of the complaint reveals incidents through July 2, 2012. The Agency's definition of the complaint did not include examples of the harassment. We added them for the sake of clarity.
2 The Agency's definition of the complaint did not capture the basis of sex discrimination or incident h. We included these matters since Complainant alleged them in her complaint.
3 In Complaints 1 and 2, which were filed in 2013, Complainant indicated that she received the Notices, respectively, on June 19, 2012, and September 4, 2013. It appears Complainant must have been referring to something else, since she actually received the Notices later in 2012 and 2013. But no matter which of the above 2012 and 2013 trigger dates is used, Complaints 1 and 2 were untimely filed.
------------------------------------------------------------
------------------------------------------------------------
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4,965 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120142093.r.txt | 0120142093.r.txt | TXT | text/plain | 10,380 | September 30, 2010 | Appeal Number: 0120142093
Background:
During the relevant period at issue, Complainant worked as a Deputy Director of Operations at the Agency's Alaska Air Command (ALCOM), Elmendorf Air Force Base, Alaska. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process.
On September 30, 2010, Complainant and the Agency entered into a settlement agreement to resolve the matter which she pursued through the EEO Complaint process.
The September 10, 2010 settlement agreement contains six provisions (provisions (a) - (f)). Only one provision (provision (f)) is the subject of the instant appeal. However, for purposes of putting in context the Agency obligations to Complainant in the subject agreement, we will first provide a brief synopsis of the first five provisions. Provision (a) provided for rescission of Complainant 's removal and the processing of her separation as voluntary; provision (b) provided for removal of various documents from Complainant's Official Personnel File; provision (c) provided in essence for various documents supporting a removal action not to be maintained in any Agency file; provision (d) provided for an adjustment of seniority and length of service; and provision (e) required payment of $62,107.35 in back pay.
By letter to the Agency dated February 20, 2014, Complainant alleged breach of provision (f), which provided that the Agency:
f. Will give [Complainant], if she applies for any civilian position of employment at ALCOM or Joint Task Force-Alaska, the same treatment accorded all applicants under federal law and OPM, DoD, and applicable service regulations.
Specifically, Complainant alleged that on January 28, 2014, she received a Disposition Letter from the Air Force Personnel Center "indicating another candidate was selected for [an Interagency Coordinator Specialist] position. Despite what I consider to be outstanding qualifications, I was never given the opportunity to interview for the position. When I received the Disposition letter, I became convinced of what I considered noncompliance with the settlement, and subsequently decided to file this complaint within the 30-day timeframe called for in my settlement agreement."
The Agency did not issue a determination decision on Complainant's breach claim. However, the Agency responded to Complainant's appeal and submitted documentation. Thus, in the interest of judicial efficiency, we will view the Agency's response as its decision on the matter.
In its response, the Agency stated that it complied with provision (f). Specifically, the Agency stated that Complainant was one of the thirty-nine applicants who made the certificate for the Interagency Coordinator Specialist position. The Agency further stated that after the Director of Operations and the Deputy Director of Operations for ALCOM reviewed the applicants' applications, they selected six out of thirty-nine applicants to be interviewed. Complainant was not one of the six selected applicants.
The instant appeal followed.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep't of Def., EEOC Request No. 05960032 (December 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention, that controls the contract's construction. Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787 (December 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
When a settlement agreement lacks adequate consideration, it is unenforceable. See Collins v. United States Postal Service, EEOC Request No. 05900082 (April 26, 1990). Generally, the adequacy or fairness of the consideration in a settlement agreement is not at issue, as long as some legal detriment is incurred as part of the bargain. However, when one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. See McNair v. United States Postal Service, EEOC Appeal No. 01964653 (July 1, 1997). Also, a settlement agreement that is too vague to enforce is invalid. See Bibb-Merritt v. United States Postal Service, EEOC Appeal No. 0120072689 (November 13, 2009).
Applying the above legal principles, we find that provision (f) of the agreement at issue is invalid due to the lack of consideration. Nothing was promised beyond what the Agency is already obligated to do and there was no legal detriment by the Agency. However, there was other consideration exchanged in other provisions of the settlement agreement as noted above in our discussion of provisions (a)-(e). Thus, we find that the agreement is not void but rather reformed without the language of provision (f).
However, to the extent that Complainant's claim of breach of provision (f) may constitute a separate act of alleged discrimination, Complainant is advised to contact an Agency EEO Counselor if she wishes to further pursue this matter. For the purpose of timeliness, the date Complainant first notified the Agency of her breach claim shall be considered her initial EEO counselor contact on her non-selection.
After a review of the record, we find Complainant failed to establish that the Agency breached the September 30, 2010 settlement agreement. | Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120142093
Agency No. 9MOR10001
DECISION
Complainant filed a timely appeal with this Commission concerning the Agency's compliance with the terms of a September 30, 2010 settlement agreement. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405.
BACKGROUND
During the relevant period at issue, Complainant worked as a Deputy Director of Operations at the Agency's Alaska Air Command (ALCOM), Elmendorf Air Force Base, Alaska. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process.
On September 30, 2010, Complainant and the Agency entered into a settlement agreement to resolve the matter which she pursued through the EEO Complaint process.
The September 10, 2010 settlement agreement contains six provisions (provisions (a) - (f)). Only one provision (provision (f)) is the subject of the instant appeal. However, for purposes of putting in context the Agency obligations to Complainant in the subject agreement, we will first provide a brief synopsis of the first five provisions. Provision (a) provided for rescission of Complainant 's removal and the processing of her separation as voluntary; provision (b) provided for removal of various documents from Complainant's Official Personnel File; provision (c) provided in essence for various documents supporting a removal action not to be maintained in any Agency file; provision (d) provided for an adjustment of seniority and length of service; and provision (e) required payment of $62,107.35 in back pay.
By letter to the Agency dated February 20, 2014, Complainant alleged breach of provision (f), which provided that the Agency:
f. Will give [Complainant], if she applies for any civilian position of employment at ALCOM or Joint Task Force-Alaska, the same treatment accorded all applicants under federal law and OPM, DoD, and applicable service regulations.
Specifically, Complainant alleged that on January 28, 2014, she received a Disposition Letter from the Air Force Personnel Center "indicating another candidate was selected for [an Interagency Coordinator Specialist] position. Despite what I consider to be outstanding qualifications, I was never given the opportunity to interview for the position. When I received the Disposition letter, I became convinced of what I considered noncompliance with the settlement, and subsequently decided to file this complaint within the 30-day timeframe called for in my settlement agreement."
The Agency did not issue a determination decision on Complainant's breach claim. However, the Agency responded to Complainant's appeal and submitted documentation. Thus, in the interest of judicial efficiency, we will view the Agency's response as its decision on the matter.
In its response, the Agency stated that it complied with provision (f). Specifically, the Agency stated that Complainant was one of the thirty-nine applicants who made the certificate for the Interagency Coordinator Specialist position. The Agency further stated that after the Director of Operations and the Deputy Director of Operations for ALCOM reviewed the applicants' applications, they selected six out of thirty-nine applicants to be interviewed. Complainant was not one of the six selected applicants.
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep't of Def., EEOC Request No. 05960032 (December 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention, that controls the contract's construction. Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787 (December 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
When a settlement agreement lacks adequate consideration, it is unenforceable. See Collins v. United States Postal Service, EEOC Request No. 05900082 (April 26, 1990). Generally, the adequacy or fairness of the consideration in a settlement agreement is not at issue, as long as some legal detriment is incurred as part of the bargain. However, when one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. See McNair v. United States Postal Service, EEOC Appeal No. 01964653 (July 1, 1997). Also, a settlement agreement that is too vague to enforce is invalid. See Bibb-Merritt v. United States Postal Service, EEOC Appeal No. 0120072689 (November 13, 2009).
Applying the above legal principles, we find that provision (f) of the agreement at issue is invalid due to the lack of consideration. Nothing was promised beyond what the Agency is already obligated to do and there was no legal detriment by the Agency. However, there was other consideration exchanged in other provisions of the settlement agreement as noted above in our discussion of provisions (a)-(e). Thus, we find that the agreement is not void but rather reformed without the language of provision (f).
However, to the extent that Complainant's claim of breach of provision (f) may constitute a separate act of alleged discrimination, Complainant is advised to contact an Agency EEO Counselor if she wishes to further pursue this matter. For the purpose of timeliness, the date Complainant first notified the Agency of her breach claim shall be considered her initial EEO counselor contact on her non-selection.
After a review of the record, we find Complainant failed to establish that the Agency breached the September 30, 2010 settlement agreement.
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
November 13, 2014
__________________
Date
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4,966 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120141128.txt | 0120141128.txt | TXT | text/plain | 10,657 | January 6, 2014 | Appeal Number: 0120141128
Background:
At the time of events giving rise to this complaint, Complainant worked as a Sales, Service & Distribution Clerk at the Agency's Post Office facility in Costa Mesa, California.
On December 2, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of disability (renal failure). The Agency framed the claims as alleging disability discrimination when: (1) on June 4, 2013, upon Complainant's return to work, her scheduled hours were changed from 7:00 a.m. - 4:00 p.m. to 8:30 a.m. - 5:30 p.m.; and (2) on August 19, 2013, she received an invoice from the Agency regarding a debt related to her overdrawn annual leave balance.
The Agency dismissed claim 1 for untimely EEO counselor contact and claim 2 for failure to state a claim. The instant appeal followed.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Agency reasoned that Complainant's initial contact with an EEO counselor on November 27, 2013, was beyond the 45-day limitation period from the events raised in her complaint.
However, we find that a fair reading of the complaint and related EEO counseling materials, as well as her statement on appeal, show that the Agency mischaracterized Complainant's claims.
We find that Complainant was, in reality, alleging that by changing her work hours, the Agency was refusing on an ongoing basis to accommodate her disability, which eventually forced her to retire effective July 31, 2013. Complainant stated that the change in work hours made it impossible for her to go to her dialysis treatments, which were scheduled from 5:00 p.m. to 9:00 p.m. In order to attend dialysis, Complainant asserted she was forced to use leave or leave without pay. In effect, Complainant is alleging that she was constructively discharged due to the Agency's failure to accommodate her.
Complainant's constructive discharge occurred on July 31, 2013, and Complainant initiated contact with an EEO Counselor on September 4, 2013, which is within the forty-five (45) day limitation period.
Final Decision:
Accordingly, the Agency's dismissal of claim 1 is REVERSED. | Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120141128
Agency No. 4F926024613
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 6, 2014, dismissing her complaint of unlawful employment discrimination alleging a violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales, Service & Distribution Clerk at the Agency's Post Office facility in Costa Mesa, California.
On December 2, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of disability (renal failure). The Agency framed the claims as alleging disability discrimination when: (1) on June 4, 2013, upon Complainant's return to work, her scheduled hours were changed from 7:00 a.m. - 4:00 p.m. to 8:30 a.m. - 5:30 p.m.; and (2) on August 19, 2013, she received an invoice from the Agency regarding a debt related to her overdrawn annual leave balance.
The Agency dismissed claim 1 for untimely EEO counselor contact and claim 2 for failure to state a claim. The instant appeal followed.
ANALYSIS AND FINDINGS
Claim 1
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Agency reasoned that Complainant's initial contact with an EEO counselor on November 27, 2013, was beyond the 45-day limitation period from the events raised in her complaint.
However, we find that a fair reading of the complaint and related EEO counseling materials, as well as her statement on appeal, show that the Agency mischaracterized Complainant's claims.
We find that Complainant was, in reality, alleging that by changing her work hours, the Agency was refusing on an ongoing basis to accommodate her disability, which eventually forced her to retire effective July 31, 2013. Complainant stated that the change in work hours made it impossible for her to go to her dialysis treatments, which were scheduled from 5:00 p.m. to 9:00 p.m. In order to attend dialysis, Complainant asserted she was forced to use leave or leave without pay. In effect, Complainant is alleging that she was constructively discharged due to the Agency's failure to accommodate her.
Complainant's constructive discharge occurred on July 31, 2013, and Complainant initiated contact with an EEO Counselor on September 4, 2013, which is within the forty-five (45) day limitation period. Accordingly the Agency's dismissal of claim one as untimely raised is reversed.
Claim 2
The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised her challenges regarding the Agency's effort to collect a debt from her after her retirement is within the Debt Collection Act. The Commission's regulations do not confer it with jurisdiction over such debt collection matters.
Accordingly, the Agency's dismissal of claim 1 is REVERSED. That matter is remanded as set forth below. The Agency's dismissal of claim 2 is AFFIRMED.
ORDER (E0610)
The Agency is ordered to process the remanded claims (failure to accommodate and constructive discharge) in accordance with 29 C.F.R. § 1614.108 et seq. 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 (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
November 21, 2014
__________________
Date
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4,967 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120141020.txt | 0120141020.txt | TXT | text/plain | 10,232 | December 17, 2013 | Appeal Number: 0120141020
Background:
At the time of events giving rise to this complaint, Complainant worked as a Contract Representative at the Agency's Field Office in Trinidad, Colorado.
On June 22, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity (representation of other employees in EEO matters) when, on March 11, 2013, information regarding Complainant's professional disciplinary record was disclosed by the Agency's Assistant Regional Counsel (ARC) to an EEOC Administrative Judge (AJ) without Complainant's consent.
The Agency initially accepted the complaint for investigation. An investigation was conducted from September 23, 2013 through November 29, 2013. At the conclusion of the investigation, the Agency issued its decision on December 17, 2013, dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.
The Agency noted that Complainant alleged discrimination when, on March 11, 2013, Agency's ARC released information to the AJ on a case in which she represented a bargaining unit Agency employee. Complainant asserted that she filed a motion with the AJ seeking sanctions. As part of his response, the ARC provided the following documents to the AJ: (1) two cases in which Complainant was sanctioned; (2) another EEOC AJ's Order imposing a protective order and reprimanding Complainant; (3) a document that indicated that Complainant was disbarred by the Colorado Supreme Court; and (4) an action by Colorado Supreme Court disciplining Complainant. Complainant claimed that these documents were not relevant to the motion she had filed and were provided to the AJ in order to embarrass and discredit her.
In support of its dismissal, the Agency found that Complainant was acting as a representative for another employee who was involved in the EEO complaint process. As such, the Agency determined that the alleged action by the ARC did not render Complainant aggrieved for purposes of Title VII. As such, the Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1).
Complainant appealed. She asserted that the Agency's dismissal was improper because it was issued after the complaint was accepted for investigation. She argued that the Agency did not have the authority to dismiss the complaint at that point. Further, she indicated that she requested a hearing on January 3, 2014. As such, she asserted the matter should be forwarded to an EEOC AJ for a hearing.
Legal Analysis:
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).
Complainant alleged that the action constituted unlawful retaliation. The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id.
Complainant has raised a claim of unlawful retaliation based on the disclosures made by the ARC to an AJ during the processing of another employee's EEO complaint. We note that Complainant served as the representative for a witness during the EEO hearing in that complaint. As such, the alleged reprisal occurred in her capacity as a representative and not in her status as an employee with the Agency. As such, we note that Complainant has not shown that she has suffered any harm or loss with respect to a term, condition or privilege of employment. See Baca v. Social Security Administration, EEOC Appeal No. 0120120067 (Mar. 21, 2012).
Furthermore, Complainant argued on appeal that the Agency's action would reasonably likely to deter Complainant or others from serving as representatives. However, Commission finds that complainant cannot raise such a claim based upon an absolute litigation privilege. An absolute privilege is provided for statements made as part of a judicial or administrative proceeding. See McBride v. Dep't of Justice, EEOC Appeal No. 01A00010 (Jan. 16, 2001) citing Cruey v. Gannett Co., 64 Cal. App. 4th 356, 368 (Cal. Ct. App. 1984); see also Hinds v. Magna Fabrics, Inc., 1997 WL 309378 (S.D.N.Y. June 9, 1997). Based upon this absolute privilege, we find that Complainant cannot raise such a claim based on information provided to the AJ during the EEOC's hearing process. Therefore, the Commission finds that the Agency's dismissal of the instant complaint was proper. | Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120141020
Agency No. KC-13-0408-SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 17, 2013, dismissing her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contract Representative at the Agency's Field Office in Trinidad, Colorado.
On June 22, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity (representation of other employees in EEO matters) when, on March 11, 2013, information regarding Complainant's professional disciplinary record was disclosed by the Agency's Assistant Regional Counsel (ARC) to an EEOC Administrative Judge (AJ) without Complainant's consent.
The Agency initially accepted the complaint for investigation. An investigation was conducted from September 23, 2013 through November 29, 2013. At the conclusion of the investigation, the Agency issued its decision on December 17, 2013, dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.
The Agency noted that Complainant alleged discrimination when, on March 11, 2013, Agency's ARC released information to the AJ on a case in which she represented a bargaining unit Agency employee. Complainant asserted that she filed a motion with the AJ seeking sanctions. As part of his response, the ARC provided the following documents to the AJ: (1) two cases in which Complainant was sanctioned; (2) another EEOC AJ's Order imposing a protective order and reprimanding Complainant; (3) a document that indicated that Complainant was disbarred by the Colorado Supreme Court; and (4) an action by Colorado Supreme Court disciplining Complainant. Complainant claimed that these documents were not relevant to the motion she had filed and were provided to the AJ in order to embarrass and discredit her.
In support of its dismissal, the Agency found that Complainant was acting as a representative for another employee who was involved in the EEO complaint process. As such, the Agency determined that the alleged action by the ARC did not render Complainant aggrieved for purposes of Title VII. As such, the Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1).
Complainant appealed. She asserted that the Agency's dismissal was improper because it was issued after the complaint was accepted for investigation. She argued that the Agency did not have the authority to dismiss the complaint at that point. Further, she indicated that she requested a hearing on January 3, 2014. As such, she asserted the matter should be forwarded to an EEOC AJ for a hearing.
ANALYSIS AND FINDINGS
In accordance with 29 C.F.R. § 1614.107(a)(1), prior to a request for a hearing, an agency shall dismiss an entire complaint that fails to state a claim. The record reveals that the Agency dismissed the complaint before Complainant's hearing request was made. As such, we are not persuaded by Complainant's argument that timing of the Agency's dismissal was not appropriate.
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).
Complainant alleged that the action constituted unlawful retaliation. The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id.
Complainant has raised a claim of unlawful retaliation based on the disclosures made by the ARC to an AJ during the processing of another employee's EEO complaint. We note that Complainant served as the representative for a witness during the EEO hearing in that complaint. As such, the alleged reprisal occurred in her capacity as a representative and not in her status as an employee with the Agency. As such, we note that Complainant has not shown that she has suffered any harm or loss with respect to a term, condition or privilege of employment. See Baca v. Social Security Administration, EEOC Appeal No. 0120120067 (Mar. 21, 2012).
Furthermore, Complainant argued on appeal that the Agency's action would reasonably likely to deter Complainant or others from serving as representatives. However, Commission finds that complainant cannot raise such a claim based upon an absolute litigation privilege. An absolute privilege is provided for statements made as part of a judicial or administrative proceeding. See McBride v. Dep't of Justice, EEOC Appeal No. 01A00010 (Jan. 16, 2001) citing Cruey v. Gannett Co., 64 Cal. App. 4th 356, 368 (Cal. Ct. App. 1984); see also Hinds v. Magna Fabrics, Inc., 1997 WL 309378 (S.D.N.Y. June 9, 1997). Based upon this absolute privilege, we find that Complainant cannot raise such a claim based on information provided to the AJ during the EEOC's hearing process. Therefore, the Commission finds that the Agency's dismissal of the instant complaint was proper.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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
May 22, 2014
__________________
Date
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4,968 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120140905.pdf | 0120140905.pdf | PDF | application/pdf | 10,097 | Keturah F.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. | December 10, 2013 | Appeal Number: 0120140905
Background:
Complainant worked as a Health Aide at the John Cochran Transportation Center , which is
located within its Medical Center in St. Louis, Missouri. Her duties consisted mainly of
transporting veterans to and from appointments and functions. On December 20, 2012, she
filed an EEO complaint in which she alleged that the Supervisory Health Technician who
served as her immediate supervisor (S1) discrimin ated against her on the bases of disability
(after-effects of injuries to neck , back, and shoulder which occurred on June 26, 2012) , age
(55), and in reprisal for prior protected EEO activity by reassigning her to the Jefferson
Barracks Transportation Cent er on September 20, 2012.
Complainant suffered an injury on June 26, 2012. Beginning the following day and continuing
through October 30, 2012, she was offered a series of transitional light duty assignments, one of which was a transitional assignmen t at the Jefferson Barracks Transportation Center.
Complainant checked the box indicating that she had accepted the assignment. She returned to
the Cochran Center after four weeks and was cleared to resume her regular job without restriction on October 3 0, 2012. Investigative Report (IR) 94- 96, 132- 135, 138. Complainant
did not request a reasonable accommodation. IR 95.
At the conclusion of the investigation, the Agency notified Complainant of her right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29
C.F.R. § 1614.110(b) , in which it concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.
Legal Analysis:
The Commission
deems the appeal timely and accepts it for de novo review . For the following reas ons, the
Commission AFFIRMS the Agency’s final decision .
BACKGROUND
Complainant worked as a Health Aide at the John Cochran Transportation Center , which is
located within its Medical Center in St. Louis, Missouri. Her duties consisted mainly of
transporting veterans to and from appointments and functions. On December 20, 2012, she
filed an EEO complaint in which she alleged that the Supervisory Health Technician who
served as her immediate supervisor (S1) discrimin ated against her on the bases of disability
(after-effects of injuries to neck , back, and shoulder which occurred on June 26, 2012) , age
(55), and in reprisal for prior protected EEO activity by reassigning her to the Jefferson
Barracks Transportation Cent er on September 20, 2012.
Complainant suffered an injury on June 26, 2012. Beginning the following day and continuing
through October 30, 2012, she was offered a series of transitional light duty assignments, one of which was a transitional assignmen t at the Jefferson Barracks Transportation Center.
Complainant checked the box indicating that she had accepted the assignment. She returned to
the Cochran Center after four weeks and was cleared to resume her regular job without restriction on October 3 0, 2012. Investigative Report (IR) 94- 96, 132- 135, 138. Complainant
did not request a reasonable accommodation. IR 95.
At the | Keturah F.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120140905
Agency No. 2003- 0657- 2013100031
DECISION
On December 10, 2013, Complainant filed an appeal from the Agency’s November 29, 2013,
final decision concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission
deems the appeal timely and accepts it for de novo review . For the following reas ons, the
Commission AFFIRMS the Agency’s final decision .
BACKGROUND
Complainant worked as a Health Aide at the John Cochran Transportation Center , which is
located within its Medical Center in St. Louis, Missouri. Her duties consisted mainly of
transporting veterans to and from appointments and functions. On December 20, 2012, she
filed an EEO complaint in which she alleged that the Supervisory Health Technician who
served as her immediate supervisor (S1) discrimin ated against her on the bases of disability
(after-effects of injuries to neck , back, and shoulder which occurred on June 26, 2012) , age
(55), and in reprisal for prior protected EEO activity by reassigning her to the Jefferson
Barracks Transportation Cent er on September 20, 2012.
Complainant suffered an injury on June 26, 2012. Beginning the following day and continuing
through October 30, 2012, she was offered a series of transitional light duty assignments, one of which was a transitional assignmen t at the Jefferson Barracks Transportation Center.
Complainant checked the box indicating that she had accepted the assignment. She returned to
the Cochran Center after four weeks and was cleared to resume her regular job without restriction on October 3 0, 2012. Investigative Report (IR) 94- 96, 132- 135, 138. Complainant
did not request a reasonable accommodation. IR 95.
At the conclusion of the investigation, the Agency notified Complainant of her right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29
C.F.R. § 1614.110(b) , in which it concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 , at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard
of review “requires that the Commission examine the record without regard to the factual and
legal determination s of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record
and its interpretation of the law”).
The Commission cannot second- guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Texas Depart ment of Community Affairs v. Burdine
, 450 U.S. 248, 259
(1981). Therefore, in order to prevail on her disparate treatment claim, Complainant would
have to present enough evidence to raise a genuine issue of fact as to whether S1 was motivated by unlawful c onsiderations of age , disability , and previous EEO activity when she
reassigned Complainant on September 20, 2012.
See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000). In circumstantial -evidence cases such as this, Complainant
can prove the existence of a discriminatory motive by presenting evidence tending to show that
the reason articulated by S1 for reassigning Complainant was a pretext, i.e., not the real reason
but rather a cover for discrimination. St. Mary’s Honor Society v. Hicks , 509 U.S. 502, 515
(1993).
When asked by the investigator why she believed that S1 had reassigned her on September 20,
2012, because of her age, disability, and previous EEO activity, Complainant responded that a
Health Aide in her twenties , who a lso worked as a driver and was injured, was allowed to
remain in light duty for more than a year. IR 87. This individual had suffered a broken leg
and had requested a reasonable accommodation, while Complainant did not. IR 87. When
asked why she felt that her disability was a factor in being reassigned from Cochran to
Jefferson, she admitted that she could not do the job that was required of her. IR 87. S1
simply reassigned her to a location where light duty work was available. She returned to
Cochran after being cleared to resume her regular job duties by her doctor. IR 96. Finally,
when asked why she believed that S1 had retaliated against her, she replied that it was because she had written a letter to t he First Lady of the United States complaining about the conditions
at the facility. Beyond the assertions made in her affidavit, however, Complainant has not
submitted any sworn statements from other witnesses or documents that contradict the explanation provided by S1 or which call S1’s veracity into question. We therefore agree with
the Agency that Complainant failed to prove the existence of an unlawful motivation on the part of S1 with respect to Complainant ’s reassignment on September 20, 2012.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency ’s final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 o r 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 Chap. 9 § VII.B (Aug. 5, 2015). All r equests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 reques t. 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 R IGHT 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 d efendant 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you.
You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).
FOR THE COMMISSIO N:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
September 22, 2016
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4,969 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120140762.pdf | 0120140762.pdf | PDF | application/pdf | 10,609 | Allene R .1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. | November 18, 2013 | Appeal Number: 0120140762
Background:
At the time of events giving rise to this complaint, Complainant worked as a n Intensive
Outpatient Program (IOP) Coordinator -Psychologist, in the Mental Health Services at the
Agency’s facility located in Fort Wayne, Indiana. On September 10, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases
2 of sex
(female) a nd in reprisal for prior protected EEO activity when: (1) on February 10, 2010, she
did not receive a cash award;3 (2) on March 15, 18, and 23, 2010, Complainant’s supervisor
(S1) denied her overtime/compensatory time; and (3) she was subjected to a hostile work
environment in the following manner: (a) between March 30, 2009 and April 27, 2009, she was never greeted by S1; (b) from March 30, 2009 through June 2009, she was forced to share
an office with another employee (C1); (c) from March 30, 2009 t hrough May 5, 2009, she was
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non- parties and the Commission’s website.
2 Prior to the hearing, Complainant withdrew the basis of national origin (Serbian) from her
complaint.
3 The sole basis for this claim is sex.
not provided with a key to her office and had to wait in the hallw ay for someone to open her
door; (d) f rom March 30, 2009 through present, S1 incorrectly reported h er workload to upper
management; (e ) from March 30, 2009 to pre sent, management has not hired full -time
employees for her clinic and failed to provide rooms for her to treat patients ;4 (f) on or about
April 16, 2009, she w as informed by a n unidentified coworker that S1 did not want her there;
(g) from April 27, 2009 t hrough present, she was never given any guidelines, job description,
training, staff, or info rmation on how to establish the IOP; (h) on or a bout January 2010, S1
directed staff to withhold information from her related to her resignation; (i) o n February 10,
2010, due to her initial poor performance evaluation by S1 , she did not receive a cash award ;
(j) on or about March 2010, S1 tried to undermine the IOP by insuring she did not receive
referrals from physicians; (k) o n March 12, 2010, S1 wanted her to respond to a report of
contact made against her by a coworker ; (l) o n March 15, 18, and 23, 2010, she was denied
overtime/compensatory time; (m) o n April 8, 2010, she was verbally reprimanded by S1 for
scheduling a few patient sessions ; (n) o n May 21, 2010, S1 imped ed her ability to have a co -
worker run a group clinic which resulted in the receipt of inappropriate referral s to her
substance abuse clinic; and (o) o n or about June/July 2010, S1 provided negative/false
information to another Agency facility p rior to her decision to transfer .
At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrati ve Judge (AJ). Complainant timely requested a hearing .
The AJ held a hearing on May 10, 11 2012, November 29, and 30 2012. On September 30,
2013, the AJ issued his decision which conclude d that Complainant failed to prove
discrimination or harassment as alleged. The Agency subsequently issued a final order
adopting the AJ’s decision.
CONTENTIONS ON APPEAL
Complainant asserts that the AJ erred: (1) by deciding, contrary to the evidence that S1 did not
learn of complainant's protected EEO activity until he was contacted by the EEO investigator;
(2) by not considering any facts showing that Complainant was treated differently than her co-workers; (3) by not considering facts showing that C omplainant was the victim of a scheme
designed to ensure her failure; (4) by deciding C omplainant's claim that S1 sent her
inappropriate referrals without considering the fact s relevant to that claim; and (5 ) by reaching
unsupportable conclusions regarding the suitability of complainant's requests for compensatory
time and/or overtime.
Legal Analysis:
the Commission AFFIRMS the Agency’s final order .
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a n Intensive
Outpatient Program (IOP) Coordinator -Psychologist, in the Mental Health Services at the
Agency’s facility located in Fort Wayne, Indiana. On September 10, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases
2 of sex
(female) a nd in reprisal for prior protected EEO activity when: (1) on February 10, 2010, she
did not receive a cash award;3 (2) on March 15, 18, and 23, 2010, Complainant’s supervisor
(S1) denied her overtime/compensatory time; and (3) she was subjected to a hostile work
environment in the following manner: (a) between March 30, 2009 and April 27, 2009, she was never greeted by S1; (b) from March 30, 2009 through June 2009, she was forced to share
an office with another employee (C1); (c) from March 30, 2009 t hrough May 5, 2009, she was
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non- parties and the Commission’s website.
2 Prior to the hearing, Complainant withdrew the basis of national origin (Serbian) from her
complaint.
3 The sole basis for this claim is sex.
not provided with a key to her office and had to wait in the hallw ay for someone to open her
door; (d) f rom March 30, 2009 through present, S1 incorrectly reported h er workload to upper
management; (e ) from March 30, 2009 to pre sent, management has not hired full -time
employees for her clinic and failed to provide rooms for her to treat patients ;4 (f) on or about
April 16, 2009, she w as informed by a n unidentified coworker that S1 did not want her there;
(g) from April 27, 2009 t hrough present, she was never given any guidelines, job description,
training, staff, or info rmation on how to establish the IOP; (h) on or a bout January 2010, S1
directed staff to withhold information from her related to her resignation; (i) o n February 10,
2010, due to her initial poor performance evaluation by S1 , she did not receive a cash award ;
(j) on or about March 2010, S1 tried to undermine the IOP by insuring she did not receive
referrals from physicians; (k) o n March 12, 2010, S1 wanted her to respond to a report of
contact made against her by a coworker ; (l) o n March 15, 18, and 23, 2010, she was denied
overtime/compensatory time; (m) o n April 8, 2010, she was verbally reprimanded by S1 for
scheduling a few patient sessions ; (n) o n May 21, 2010, S1 imped ed her ability to have a co -
worker run a group clinic which resulted in the receipt of inappropriate referral s to her
substance abuse clinic; and (o) o n or about June/July 2010, S1 provided negative/false
information to another Agency facility p rior to her decision to transfer .
At the | Allene R .1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120140762
Hearing No. 470- 2011- 00066X
Agency No. 200J06102010102242
DECISION
Complainant filed an appeal from the Agency’s November 18, 2013, final order concerning
her equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS the Agency’s final order .
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a n Intensive
Outpatient Program (IOP) Coordinator -Psychologist, in the Mental Health Services at the
Agency’s facility located in Fort Wayne, Indiana. On September 10, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases
2 of sex
(female) a nd in reprisal for prior protected EEO activity when: (1) on February 10, 2010, she
did not receive a cash award;3 (2) on March 15, 18, and 23, 2010, Complainant’s supervisor
(S1) denied her overtime/compensatory time; and (3) she was subjected to a hostile work
environment in the following manner: (a) between March 30, 2009 and April 27, 2009, she was never greeted by S1; (b) from March 30, 2009 through June 2009, she was forced to share
an office with another employee (C1); (c) from March 30, 2009 t hrough May 5, 2009, she was
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non- parties and the Commission’s website.
2 Prior to the hearing, Complainant withdrew the basis of national origin (Serbian) from her
complaint.
3 The sole basis for this claim is sex.
not provided with a key to her office and had to wait in the hallw ay for someone to open her
door; (d) f rom March 30, 2009 through present, S1 incorrectly reported h er workload to upper
management; (e ) from March 30, 2009 to pre sent, management has not hired full -time
employees for her clinic and failed to provide rooms for her to treat patients ;4 (f) on or about
April 16, 2009, she w as informed by a n unidentified coworker that S1 did not want her there;
(g) from April 27, 2009 t hrough present, she was never given any guidelines, job description,
training, staff, or info rmation on how to establish the IOP; (h) on or a bout January 2010, S1
directed staff to withhold information from her related to her resignation; (i) o n February 10,
2010, due to her initial poor performance evaluation by S1 , she did not receive a cash award ;
(j) on or about March 2010, S1 tried to undermine the IOP by insuring she did not receive
referrals from physicians; (k) o n March 12, 2010, S1 wanted her to respond to a report of
contact made against her by a coworker ; (l) o n March 15, 18, and 23, 2010, she was denied
overtime/compensatory time; (m) o n April 8, 2010, she was verbally reprimanded by S1 for
scheduling a few patient sessions ; (n) o n May 21, 2010, S1 imped ed her ability to have a co -
worker run a group clinic which resulted in the receipt of inappropriate referral s to her
substance abuse clinic; and (o) o n or about June/July 2010, S1 provided negative/false
information to another Agency facility p rior to her decision to transfer .
At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrati ve Judge (AJ). Complainant timely requested a hearing .
The AJ held a hearing on May 10, 11 2012, November 29, and 30 2012. On September 30,
2013, the AJ issued his decision which conclude d that Complainant failed to prove
discrimination or harassment as alleged. The Agency subsequently issued a final order
adopting the AJ’s decision.
CONTENTIONS ON APPEAL
Complainant asserts that the AJ erred: (1) by deciding, contrary to the evidence that S1 did not
learn of complainant's protected EEO activity until he was contacted by the EEO investigator;
(2) by not considering any facts showing that Complainant was treated differently than her co-workers; (3) by not considering facts showing that C omplainant was the victim of a scheme
designed to ensure her failure; (4) by deciding C omplainant's claim that S1 sent her
inappropriate referrals without considering the fact s relevant to that claim; and (5 ) by reaching
unsupportable conclusions regarding the suitability of complainant's requests for compensatory
time and/or overtime.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post -hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board , 340 U.S. 474, 477 (1951)
4 Complainant withdrew this claim prior to the hearing.
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman -Standard Co. v. Swint , 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibi lity that a reasonable fact finder would not credit
it. See
EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).
Upon review of the record, we find insufficient evidence to show that the AJ’s decision is not
supported by substantial evide nce in the record. Whether or not Complainant’s comparator
evidence was sufficient to establish a prima facie case of disparate treatment, the record supports the AJ’s conclusion that Complainant failed to p resent sufficient evidence that the
employment a ctions at issue were motivated by discriminatory or retaliatory animus.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final action which adopt s the AJ’s
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employ ment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
5 We note that the AJ made credibility findings in his decision.
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 tim e 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 (Z0815)
If you w ant to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you.
You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny t hese types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
October 5, 2016
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4,970 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120140614.r.txt | 0120140614.r.txt | TXT | text/plain | 10,102 | October 21, 2013 | Appeal Number: 0120140614
Background:
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's MPO facility in El Dorado, Arkansas.
On October 4, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), disability and reprisal when, on May 17, 2013, he was denied a reasonable accommodation and was placed off the clock.
The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for failure to raise the matter in the complaint with an EEO counselor. The instant appeal followed.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint or portion thereof which raises a matter that has not been brought to the attention of an EEO counselor, or is not "like or related" to a matter on which the complainant has received counseling.
According to EEO counseling report in this case, Complainant claimed he was denied continuation of pay (COP) benefits for an on-the-job injury from May 15-25, 2013.
In his formal EEO complaint, Complainant stated that the Agency retaliated against him for seeking EEO counseling concerning the alleged discriminatory handling of his workers' compensation claim. Specifically, Complainant alleged that he was not allowed to return to work until he was medically able to work an eight-hour shift. Essentially, he appears to be alleging that the Agency denied him a reasonable accommodation by refusing to allow him to work reduced hours until he was medically able to return to work full-time.
While Complainant did not specifically raise the denial of reasonable accommodation during counseling, it is clear that this claim is sufficiently related to the claim he sought counseling for. The events all arise out of the same factual background - management's treatment of him with respect to his May 2013 on-the-job injury. Significantly, Complainant has alleged that he was denied reasonable accommodation (put off work rather than being allowed to work a reduced schedule within his medical restrictions) in retaliation for seeking counseling on the COP benefits. We find that the Agency should have accepted Complainant's reasonable accommodation claim (both disability discrimination and retaliation) because it is sufficiently related to the matter he raised in counseling.
However, to the extent Complainant is challenging the Agency's refusal to pay him COP as ordered by the Office of Worker's Compensation Programs (OWCP), such matters are not within the Commission's jurisdiction. Complainant should raise his concerns with the Department of Labor not the Commission. | Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120140614
Agency No. 4G720008113
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 21, 2013, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's MPO facility in El Dorado, Arkansas.
On October 4, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), disability and reprisal when, on May 17, 2013, he was denied a reasonable accommodation and was placed off the clock.
The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for failure to raise the matter in the complaint with an EEO counselor. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint or portion thereof which raises a matter that has not been brought to the attention of an EEO counselor, or is not "like or related" to a matter on which the complainant has received counseling.
According to EEO counseling report in this case, Complainant claimed he was denied continuation of pay (COP) benefits for an on-the-job injury from May 15-25, 2013.
In his formal EEO complaint, Complainant stated that the Agency retaliated against him for seeking EEO counseling concerning the alleged discriminatory handling of his workers' compensation claim. Specifically, Complainant alleged that he was not allowed to return to work until he was medically able to work an eight-hour shift. Essentially, he appears to be alleging that the Agency denied him a reasonable accommodation by refusing to allow him to work reduced hours until he was medically able to return to work full-time.
While Complainant did not specifically raise the denial of reasonable accommodation during counseling, it is clear that this claim is sufficiently related to the claim he sought counseling for. The events all arise out of the same factual background - management's treatment of him with respect to his May 2013 on-the-job injury. Significantly, Complainant has alleged that he was denied reasonable accommodation (put off work rather than being allowed to work a reduced schedule within his medical restrictions) in retaliation for seeking counseling on the COP benefits. We find that the Agency should have accepted Complainant's reasonable accommodation claim (both disability discrimination and retaliation) because it is sufficiently related to the matter he raised in counseling.
However, to the extent Complainant is challenging the Agency's refusal to pay him COP as ordered by the Office of Worker's Compensation Programs (OWCP), such matters are not within the Commission's jurisdiction. Complainant should raise his concerns with the Department of Labor not the Commission.
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED and the complaint is REMANDED to the Agency for further processing pursuant to the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claim (denial of reasonable accommodation based on disability discrimination and unlawful retaliation) in accordance with 29 C.F.R. § 1614.108 et seq.. 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 (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0610)
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 (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
April 11, 2014
__________________
Date
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4,971 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120140566.txt | 0120140566.txt | TXT | text/plain | 10,779 | October 31, 2013 | Appeal Number: 0120140566
Background:
At the time of events giving rise to this complaint, Complainant worked as a Student Trainee at the Agency's facility in Fort Sam Houston, Texas.
On August 20, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and reprisal for prior protected EEO activity when: (1) she was removed from her position; (2) she received AR Investigation results stating there was no evidence of harassment; (3) she was asked to provide copies of her college transcripts although she had already provided them; (4) she was placed on administrative leave pending further notice of her supervisor and was required to call in every day; (5) on or about February 7, 2013, her supervisor ignored her complaints of being sexually harassed; (6) between January 2012 and May 2013, a male co-worker grabbed her buttocks and breasts, touched her buttocks, and made sexual comments to her; and (7) the same co-worker insulted her about her breast size and made other inappropriate comments to her.
On October 31, 2013, the Agency issued a final decision dismissing the complaint, pursuant to 29 C.F.R. § 1614.107(a)(4), because Complainant had filed an appeal with the Merit Systems Protection Board (MSPB). The instant appeal followed.
Legal Analysis:
THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. | Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120140566
Agency No. ARFTSAM13MAY01664
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 31, 2013, dismissing her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Student Trainee at the Agency's facility in Fort Sam Houston, Texas.
On August 20, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and reprisal for prior protected EEO activity when: (1) she was removed from her position; (2) she received AR Investigation results stating there was no evidence of harassment; (3) she was asked to provide copies of her college transcripts although she had already provided them; (4) she was placed on administrative leave pending further notice of her supervisor and was required to call in every day; (5) on or about February 7, 2013, her supervisor ignored her complaints of being sexually harassed; (6) between January 2012 and May 2013, a male co-worker grabbed her buttocks and breasts, touched her buttocks, and made sexual comments to her; and (7) the same co-worker insulted her about her breast size and made other inappropriate comments to her.
On October 31, 2013, the Agency issued a final decision dismissing the complaint, pursuant to 29 C.F.R. § 1614.107(a)(4), because Complainant had filed an appeal with the Merit Systems Protection Board (MSPB). The instant appeal followed.
ANALYSIS AND FINDINGS
Termination
Complainant appealed her termination to the MSPB. A mixed case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. § 1614.302(a)(1). An aggrieved person may initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. § 1201.151, but not both. 29 C.F.R. § 1614.302(b). 29 C.F.R. § 1614.107(a)(4) provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. § 1614.302 indicates that a complainant has elected to pursue the non EEO process.
In the instant case, only Complainant's termination is potentially appealable to the MSPB. Thus we find that claim (1) was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(4).
Nonetheless, the Agency is reminded that should the MSPB dismiss the matter for lack of jurisdiction given Complainant's status as a student trainee, the matter becomes "unmixed" and the termination claim should be reinstated in the EEO complaint process and joined with Complainant's remaining claims.
Harassment Claims
With regard to the remaining claims in Complainant's EEO complaint, we find that a fair reading of her allegations shows that she is alleging sexual harassment by a coworker and the failure of management to properly respond to the harassment. Complainant also seems to be alleging that in retaliation for complaining about the sexual harassment, management questioned her college transcripts, placed her on administrative leave and eventually fired her. With the exception of the termination decision, these allegations are not before the MSPB and should be processed separately as an EEO complaint.
Accordingly, the Agency's final decision dismissing Complainant's claim (1) related to her termination is AFFIRMED unless the MSPB rules that it has no jurisdiction over the matter. The dismissal of the remaining allegations is REVERSED and the matter is REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. 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 (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
April 2, 2014
__________________
Date
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4,972 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120140265.txt | 0120140265.txt | TXT | text/plain | 10,133 | Dominic E. Saldanha, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency. | September 10, 2013 | Appeal Number: 0120140265
Background:
At the time of events giving rise to this complaint, Complainant worked as an Associate Supervisor, Mail Flow Controller, at the Agency's New Jersey NDC facility, in Jersey City, New Jersey.
On June 6, 2013, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1) The Agency agrees to pay the sum of $12,000.00 in compensatory damages to [Complainant] for emotional injuries. This payment is in full satisfaction of [Complainant's] claim and will be payable within thirty days of the date of this agreement; and
(2) The Agency agrees to place [Complainant] in a 90 day 204B Supervisor customer service detail within 60 days of this Agreement. Such detail shall take place within a 50 mile radius of [Complainant's] home.
By letter to the Agency dated August 26, 2013, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency reinstate his complaint. Complainant did not provide the Agency with any further details regarding the nature of his breach claim.
The record shows that a check in the amount of $12,000.00 was issued to Complainant on June 20, 2013 and cashed on July 1, 2013. With regard to the detail assignment, the Agency maintains that, after receipt of the breach allegation, the Agency became aware that Complainant's detail assignment had not been finalized. On August 30, 2013, the Agency notified Complainant that he would begin a detail as a Customer Service Supervisor at the Edison Post Office. That office was located within six miles of Complainant's home.
In its September 10, 2013 FAD, the Agency concluded that it had fully complied with the settlement agreement. The Agency reasoned that its records showed that the Agency took the necessary steps to ensure compliance within 35 days of receipt of the breach claim. This appeal followed.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep't of Def., EEOC Request No. 05960032 (December 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention that controls the contract's construction. Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787 (December 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case, Complainant argues that the 20 day delay in granting him the detail entitles him to reinstatement of his complaint. In addition, he maintains that he should not be required to return the $12,000.00 issued to him as compensatory damages, if his complaint was reinstated, because the money was for emotional injuries. Complainant acknowledges that he accepted the 204B Supervisor 90 day assignment and served the 90 day detail.
The Commission has held that, pursuant to 29 C.F.R. 1614.504(b), an agency has 35 days from the receipt of a complainant's allegation of noncompliance to resolve the matter, or cure any breach that occurred. The Commission has further held that if an agency cures a breach during the 35 day period after the filing of a breach claim, it will be deemed to be in compliance. Eckholm v. Department of Veterans Affairs, EEOC Appeal No. 0120091193 (April 29, 2009).
We find that to the extent that Complainant believes that the Agency actions constituted breach, the Agency's action of effectuating the detail assignment after receipt of notice of Complainant's claims, cured any such breach. Since Complainant presents no evidence of bad faith, we find that the Agency complied with the agreement.
Finally, we note that, on appeal, Complainant argues that after signing the Agreement, other Mail Flow Controllers, who were also affected by a Reduction-in-Force and issued letters at the same time Complainant was issued a letter, were "treated completely differently". Complainant alleges discrimination, because he was told that he had to compete for promotion to the Associate Supervisor - Distribution Operations job. This matter was not the subject of the settlement agreement. Complainant is advised that if he wishes to pursue, through the EEO process, the additional discrimination or reprisal claim he raised for the first time on appeal, he should initiate contact with an EEO Counselor within 15 days after he receives this decision. The Commission advises the Agency that if Complainant seeks EEO counseling regarding the new claims within the above 15-day period, the date Complainant filed the appeal statement in which he raised these claims 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. Dep't of the Navy, EEOC Request No. 05970201 (Jan. 16, 1998). | Dominic E. Saldanha,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120140265
Agency No. 4B-070-0087-13
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated September 10, 2013, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Associate Supervisor, Mail Flow Controller, at the Agency's New Jersey NDC facility, in Jersey City, New Jersey.
On June 6, 2013, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1) The Agency agrees to pay the sum of $12,000.00 in compensatory damages to [Complainant] for emotional injuries. This payment is in full satisfaction of [Complainant's] claim and will be payable within thirty days of the date of this agreement; and
(2) The Agency agrees to place [Complainant] in a 90 day 204B Supervisor customer service detail within 60 days of this Agreement. Such detail shall take place within a 50 mile radius of [Complainant's] home.
By letter to the Agency dated August 26, 2013, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency reinstate his complaint. Complainant did not provide the Agency with any further details regarding the nature of his breach claim.
The record shows that a check in the amount of $12,000.00 was issued to Complainant on June 20, 2013 and cashed on July 1, 2013. With regard to the detail assignment, the Agency maintains that, after receipt of the breach allegation, the Agency became aware that Complainant's detail assignment had not been finalized. On August 30, 2013, the Agency notified Complainant that he would begin a detail as a Customer Service Supervisor at the Edison Post Office. That office was located within six miles of Complainant's home.
In its September 10, 2013 FAD, the Agency concluded that it had fully complied with the settlement agreement. The Agency reasoned that its records showed that the Agency took the necessary steps to ensure compliance within 35 days of receipt of the breach claim. This appeal followed.
ANALYSIS
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep't of Def., EEOC Request No. 05960032 (December 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention that controls the contract's construction. Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O v. U.S. Postal Serv., EEOC Request No. 05910787 (December 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case, Complainant argues that the 20 day delay in granting him the detail entitles him to reinstatement of his complaint. In addition, he maintains that he should not be required to return the $12,000.00 issued to him as compensatory damages, if his complaint was reinstated, because the money was for emotional injuries. Complainant acknowledges that he accepted the 204B Supervisor 90 day assignment and served the 90 day detail.
The Commission has held that, pursuant to 29 C.F.R. 1614.504(b), an agency has 35 days from the receipt of a complainant's allegation of noncompliance to resolve the matter, or cure any breach that occurred. The Commission has further held that if an agency cures a breach during the 35 day period after the filing of a breach claim, it will be deemed to be in compliance. Eckholm v. Department of Veterans Affairs, EEOC Appeal No. 0120091193 (April 29, 2009).
We find that to the extent that Complainant believes that the Agency actions constituted breach, the Agency's action of effectuating the detail assignment after receipt of notice of Complainant's claims, cured any such breach. Since Complainant presents no evidence of bad faith, we find that the Agency complied with the agreement.
Finally, we note that, on appeal, Complainant argues that after signing the Agreement, other Mail Flow Controllers, who were also affected by a Reduction-in-Force and issued letters at the same time Complainant was issued a letter, were "treated completely differently". Complainant alleges discrimination, because he was told that he had to compete for promotion to the Associate Supervisor - Distribution Operations job. This matter was not the subject of the settlement agreement. Complainant is advised that if he wishes to pursue, through the EEO process, the additional discrimination or reprisal claim he raised for the first time on appeal, he should initiate contact with an EEO Counselor within 15 days after he receives this decision. The Commission advises the Agency that if Complainant seeks EEO counseling regarding the new claims within the above 15-day period, the date Complainant filed the appeal statement in which he raised these claims 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. Dep't of the Navy, EEOC Request No. 05970201 (Jan. 16, 1998).
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision finding no breach.
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 tends 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
September 26, 2014
__________________
Date
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4,973 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120133145.pdf | 0120133145.pdf | PDF | application/pdf | 8,987 | August 26, 2013 | Appeal Number: 0120133145
Background:
The Agency employed Complainant as a Financial Accounts Technician at its medical center in
Hampton, Virginia. On October 13, 2010, Complainant filed an EEO complaint in which she
alleged that various Agency officials retaliated against her for previous EEO activity by not selecting her for a Human Resources Specialist position in July 2009, a Legal Assistant position in January 2010, and the Legal Assistant p osition a second time in April 2010, when it
became vacant as a result of the death of the previous selectee. The Agency dismissed the
complaint in its entirety , but in
Complainant v. Department of Veterans Affairs , EEOC Appeal
No. 0120110921 (April 26, 2012), request for reconsideration denied
EEOC Request No.
0520120432 (November 13, 2012), the Commission ordered the Agency to process the c laim
involving the nonselection that occurred in April 2010 . At the conclusion of the ensuing
investigation, the Agency notified Complainant of her right to request a hearing before an
EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected her to discrimination as alleged.
Legal Analysis:
The Commission deems the appeal timely and accepts it pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the
Agency’s final decision .
BACKGROUND
The Agency employed Complainant as a Financial Accounts Technician at its medical center in
Hampton, Virginia. On October 13, 2010, Complainant filed an EEO complaint in which she
alleged that various Agency officials retaliated against her for previous EEO activity by not selecting her for a Human Resources Specialist position in July 2009, a Legal Assistant position in January 2010, and the Legal Assistant p osition a second time in April 2010, when it
became vacant as a result of the death of the previous selectee. The Agency dismissed the
complaint in its entirety , but in
Complainant v. Department of Veterans Affairs , EEOC Appeal
No. 0120110921 (April 26, 2012), request for reconsideration denied
EEOC Request No.
0520120432 (November 13, 2012), the Commission ordered the Agency to process the c laim
involving the nonselection that occurred in April 2010 . At the | ,
Com
plainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120133145
Agency No. 2004- 0590- 2010103944
DECISION
On August 26, 2013, Complainant filed an appeal from the Agency’s July 27, 2013 final
decision concerning her equal employment opportunity (EEO) complaint alleging 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. The Commission deems the appeal timely and accepts it pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the
Agency’s final decision .
BACKGROUND
The Agency employed Complainant as a Financial Accounts Technician at its medical center in
Hampton, Virginia. On October 13, 2010, Complainant filed an EEO complaint in which she
alleged that various Agency officials retaliated against her for previous EEO activity by not selecting her for a Human Resources Specialist position in July 2009, a Legal Assistant position in January 2010, and the Legal Assistant p osition a second time in April 2010, when it
became vacant as a result of the death of the previous selectee. The Agency dismissed the
complaint in its entirety , but in
Complainant v. Department of Veterans Affairs , EEOC Appeal
No. 0120110921 (April 26, 2012), request for reconsideration denied
EEOC Request No.
0520120432 (November 13, 2012), the Commission ordered the Agency to process the c laim
involving the nonselection that occurred in April 2010 . At the conclusion of the ensuing
investigation, the Agency notified Complainant of her right to request a hearing before an
EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected her to discrimination as alleged.
ANALYSIS AND FINDINGS
To prevail on her disparate treatment claim, Complainant would have to prove, by a
preponderance of the evidence, that the officials involved in the selection process for the Legal
Assistant position were motivated by unlawful considerations of her previous EEO activity.
See Reeves v. Sanderson Plumbing Products, Inc.
, 530 U.S. 133, 143 (2000). The Regional
Counsel who served as the selecting official for the position averred that when the vacancy
unexpectedly opened, he asked the Human Resources Office to re- announce the position.
When HR presented him with a certificate of eligible candidates, he empowered a panel that
included three staff attorneys and an executive secretary and charged them with interviewing the candidates and making a recommendation for selectee. Complainant and the selectee were
among those referred for consideration. Aft er completing the interviews and scoring the
candidates, the panel made their recommendations to the Regional Counsel, who ultimately chose the selectee. Investigative Report (IR) 675 -76, 695.
The Commission cannot second- guess an Agency’s decisions invo lving selection of personnel
unless there is evidence of a discriminatory or retaliatory motivation on the part of the officials responsible for the selection.
See Texas Department of Community. Affairs v. Burdine , 450
U.S. 248, 259 (1981). Such evidence can take the form of a showing that Complainant’s
qualifications for the position at issue were plainly superior to those of the selectee. Guida v.
United States Postal Service , EEOC Appeal No. 01923174 (April 15, 1993). Complainant
averred that she was far more qualified than the selectee because the selectee had been with the Agency for only six months while she, the Complainant, had over 23 years of service. The
Commission has consistently held, however, that having more years of experience than a
selectee does not necessarily make an individual more qualified to meet the needs of the
organization.
See Collins v. Dep't of Treasury , EEOC Request No. 05A41248 (Oct. 5, 2004) .
The panelists collectively awarded the selectee the highest total and average scores while
giving Complainant the third highest total and average scores. The Regional Counsel chose the
selectee in accordance with these recommendations. IR 339-45, 348- 53, 551, 567- 681. While
Complainant expressed her belief that the actions of the Regional Counsel and the panelists
were based on considerations of her previous EEO activity, she has not presented any sworn
statements from other witnesses or documents which contradict the explanations provided by
these officials for choosing the selectee or call their veracity into question. Unsupported
assertions are not sufficient evidence of illegal motive. Porter v. Department of the Navy
,
EEOC Petition No. 03800087 (January 14, 1981). We therefore agree with the Agency that
Complainant has not sustained her burden of pr oof as to the existence of retali atory intent on
the part of the Regional Counsel or the panelists.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.
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 FI LE 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 REQUES T 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 wi thin 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
Date January 7, 2015 | [
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4,974 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120132037.txt | 0120132037.txt | TXT | text/plain | 10,642 | Stanley C. Mason, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency. | April 9, 2013 | Appeal Number: 0120132037
Background:
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's IMP facility in Linthicum, Maryland. Complainant was also a union steward.
On March 5, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male), color (light skinned), and age (49) when: (1) on December 27, 2012 and ongoing, his supervisor required him to complete documentation for union steward time; and (2) on December 27, 2012, he was threatened by his supervisor, who said, "I'm going to get you!"
On April 9, 2013, the Agency issued a final decision dismissing the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency noted in a footnote that Complainant's retaliation claim was based n his role as a union steward, rather than an activity protected by the anti-discrimination statutes. The Agency found that the claims were a collateral attack on the grievance process.
The instant appeal followed. In his appeal, Complainant explains that he represented individuals in EEO matters, and states that he is being retaliated against because of his representation in EEO matters. Complainant also states that the supervisor's comment was made because of his involvement with the EEO matters.
Legal Analysis:
The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to raise matters related to documenting his time as a union steward is within the grievance process.
Regarding complainant's claim of reprisal, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. Further, representing individuals in EEO activities is protected as such. We find that being threatened by a supervisor, under these circumstances, states a viable claim of reprisal. Thus, with respect to claim 2, Complainant has alleged an injury or harm 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 (April 21, 1994). | Stanley C. Mason,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120132037
Agency No. 1K211001613
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 9, 2013, 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 a Mail Processing Clerk at the Agency's IMP facility in Linthicum, Maryland. Complainant was also a union steward.
On March 5, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male), color (light skinned), and age (49) when: (1) on December 27, 2012 and ongoing, his supervisor required him to complete documentation for union steward time; and (2) on December 27, 2012, he was threatened by his supervisor, who said, "I'm going to get you!"
On April 9, 2013, the Agency issued a final decision dismissing the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency noted in a footnote that Complainant's retaliation claim was based n his role as a union steward, rather than an activity protected by the anti-discrimination statutes. The Agency found that the claims were a collateral attack on the grievance process.
The instant appeal followed. In his appeal, Complainant explains that he represented individuals in EEO matters, and states that he is being retaliated against because of his representation in EEO matters. Complainant also states that the supervisor's comment was made because of his involvement with the EEO matters.
ANALYSIS AND FINDINGS
As to claim 1, we agree that the matter presents a collateral attack on the grievance process. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to raise matters related to documenting his time as a union steward is within the grievance process.
Regarding complainant's claim of reprisal, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. Further, representing individuals in EEO activities is protected as such. We find that being threatened by a supervisor, under these circumstances, states a viable claim of reprisal. Thus, with respect to claim 2, Complainant has alleged an injury or harm 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 (April 21, 1994).
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED IN PART and REVERSED IN PART. The complaint is hereby remanded to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the claim 2 (on the basis of alleged reprisal) in accordance with 29 C.F.R. § 1614.108 et seq. 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 (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
September 4, 2013
__________________
Date
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4,975 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120131916.txt | 0120131916.txt | TXT | text/plain | 9,847 | Dena J. Watkins, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency. | March 20, 2013 | Appeal Number: 0120131916
Background:
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Post Office facility in Marrero, Louisiana.
On February 23, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: (1) on October 29, 2012, management refused to meet at Informal A with the union steward to discuss her grievances; (2) on October 15, 2012, she was issued a notice of proposed removal and subsequently issued removed effective December 14, 2012; (3) on October 1, 2012, management contacted her personal physician regarding her medical condition; and (4) on September 15, 2012 management yelled at her in front of her co-workers.
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Claim 1 was considered a collateral attack on the grievance process. Claim 2 and 3 were intertwined and raised in an appeal to the Merits Systems Protection Board. Claim 4 was similar to claims raised in an earlier complaint.
The instant appeal followed. In her appeal, Complainant included a copy of an arbitrator's decision which ordered her reinstatement.
Legal Analysis:
The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised her challenges concerning management's refusal to meet with a union steward was within the grievance process.
Claims 2 and 3
An aggrieved person may initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. § 1201.151, but not both. 29 C.F.R. § 1614.302(b). 29 C.F.R. § 1614.107(a)(4) provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. § 1614.302 indicates that a complainant has elected to pursue the non - EEO process.
The record shows that Complainant was removed for allegedly falsifying a medical document from her physician. This is what prompted the Agency to contact her physician. The Agency also dismissed this claim as a collateral attack on the HIPPA Privacy Rule. Because we find that this claim is intertwined with her removal, and Complainant appealed her removal to the MSPB on January 16, 2013, we find claims 2 and 3 were properly dismissed. Complainant may not file an EEO complaint and an appeal to the MSPB on the same matter. She may, however, file an appeal with EEOC from the MSPB's decision on any claims of discrimination raised in conjunction with her challenge to her removal pursuant to 29 C.F.R. § 1614.303.
Claim 4
The Agency dismissed 4 for being identical to those claims raised in a previous complaint. It has long been established that "identical" does not mean "similar." The Commission has consistently held that in order for a complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. Dep't of the Air Force, EEOC Appeal No 01955890 (Apr. 5, 1996) rev'd on other grounds, EEOC Request No. 05960524 (Apr. 24, 1997).
In EEO complaint 4G-700-0142-12, filed on September 25, 2012, Complainant alleged that her supervisor yelled at her on between August 7 - September 12, 2012. While this is not the identical time frame to claim 4 in the instant complaint (September 15, 2012), we find that this claim should be dismissed for failure to allege facts that would establish that she is an "aggrieved employee." Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Where, as here, Complainant has not alleged disparate treatment regarding a specific term, condition, or privilege of employment, the Commission will examine whether a complainant's allegations, when considered together and assumed to be true, are sufficient to state a hostile or abusive work environment claim. See Estate of Routson v. National Aeronautics and Space Administration, EEOC Request No. 05970388 (February 26, 1999). Even if harassing conduct produces no tangible effects, a complainant may assert a cause of action if the discriminatory conduct was so severe or pervasive that it created a work environment abusive to complainant because of his race, gender, religion, national origin, age or disability. Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22, 1995) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993)) request for reconsideration denied EEOC Request No. 05970995 (May 20, 1999). In this case, we that the isolated incidents alleged by Complainant lack the severity necessary to create a direct and personal deprivation sufficient to render her aggrieved for the purposes of Title VII. See Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal Service, EEOC Request No.05940695 (February 9, 1995).
Final Decision:
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. | Dena J. Watkins,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120131916
Agency No. 4G700000213
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 20, 2013, dismissing her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Post Office facility in Marrero, Louisiana.
On February 23, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: (1) on October 29, 2012, management refused to meet at Informal A with the union steward to discuss her grievances; (2) on October 15, 2012, she was issued a notice of proposed removal and subsequently issued removed effective December 14, 2012; (3) on October 1, 2012, management contacted her personal physician regarding her medical condition; and (4) on September 15, 2012 management yelled at her in front of her co-workers.
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Claim 1 was considered a collateral attack on the grievance process. Claim 2 and 3 were intertwined and raised in an appeal to the Merits Systems Protection Board. Claim 4 was similar to claims raised in an earlier complaint.
The instant appeal followed. In her appeal, Complainant included a copy of an arbitrator's decision which ordered her reinstatement.
ANALYSIS AND FINDINGS
Claim 1
The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised her challenges concerning management's refusal to meet with a union steward was within the grievance process.
Claims 2 and 3
An aggrieved person may initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. § 1201.151, but not both. 29 C.F.R. § 1614.302(b). 29 C.F.R. § 1614.107(a)(4) provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. § 1614.302 indicates that a complainant has elected to pursue the non - EEO process.
The record shows that Complainant was removed for allegedly falsifying a medical document from her physician. This is what prompted the Agency to contact her physician. The Agency also dismissed this claim as a collateral attack on the HIPPA Privacy Rule. Because we find that this claim is intertwined with her removal, and Complainant appealed her removal to the MSPB on January 16, 2013, we find claims 2 and 3 were properly dismissed. Complainant may not file an EEO complaint and an appeal to the MSPB on the same matter. She may, however, file an appeal with EEOC from the MSPB's decision on any claims of discrimination raised in conjunction with her challenge to her removal pursuant to 29 C.F.R. § 1614.303.
Claim 4
The Agency dismissed 4 for being identical to those claims raised in a previous complaint. It has long been established that "identical" does not mean "similar." The Commission has consistently held that in order for a complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. Dep't of the Air Force, EEOC Appeal No 01955890 (Apr. 5, 1996) rev'd on other grounds, EEOC Request No. 05960524 (Apr. 24, 1997).
In EEO complaint 4G-700-0142-12, filed on September 25, 2012, Complainant alleged that her supervisor yelled at her on between August 7 - September 12, 2012. While this is not the identical time frame to claim 4 in the instant complaint (September 15, 2012), we find that this claim should be dismissed for failure to allege facts that would establish that she is an "aggrieved employee." Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Where, as here, Complainant has not alleged disparate treatment regarding a specific term, condition, or privilege of employment, the Commission will examine whether a complainant's allegations, when considered together and assumed to be true, are sufficient to state a hostile or abusive work environment claim. See Estate of Routson v. National Aeronautics and Space Administration, EEOC Request No. 05970388 (February 26, 1999). Even if harassing conduct produces no tangible effects, a complainant may assert a cause of action if the discriminatory conduct was so severe or pervasive that it created a work environment abusive to complainant because of his race, gender, religion, national origin, age or disability. Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22, 1995) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993)) request for reconsideration denied EEOC Request No. 05970995 (May 20, 1999). In this case, we that the isolated incidents alleged by Complainant lack the severity necessary to create a direct and personal deprivation sufficient to render her aggrieved for the purposes of Title VII. See Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal Service, EEOC Request No.05940695 (February 9, 1995).
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 (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
August 27, 2013
__________________
Date
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4,976 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120131773.txt | 0120131773.txt | TXT | text/plain | 10,815 | March 5, 2013 | Appeal Number: 0120131773
Background:
At the time of events giving rise to this complaint, Complainant worked as a Medical Supply Technician at the Agency's Federal Medical Center facility in Butner, North Carolina.
On December 20, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African American) and sex (male) when from January 29, 2001 through the present, management failed to approve his multiple requests to have his Medical Supply Technician, GS-06, position reclassified to a higher-graded position. Complainant further alleged that the most recent denial was on February 10, 2009, and a further attempt to reclassify his position was initiated on February 2, 2012.
The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact, indicating that Complainant did not contact an EEO counselor until September 10, 2012, seven months after his most recent attempt (in February 2012) to have his position reclassified. The instant appeal followed.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
In the instant case it is clear that Complainant has been trying to get his position reclassified for a long time. The record further indicates that the most recent attempt to reclassify Complainant's position was initiated in February 2012, although there is no indication that a decision has been made on this attempt. Complainant did not initiate EEO counseling on this matter until September 2012, seven months after the most recent reclassification process was initiated.
However, Complainant argues that his delay in initiating counseling should be excused because he did not develop a reasonable suspicion that discrimination based on his race and/or gender was at play until September 2012. Complainant alleges that in September 2012, he learned from another employee, for the first time, that several similarly situated white, female employees had had their positions reclassified. Once Complainant learned this information, he immediately contacted an EEO counselor. Under the circumstances of this case, we are persuaded that Complainant did not reasonably suspect that discrimination might be a factor in the decision not the reclassify his position until September 2012. As such, we find that his EEO counselor contact was timely made. | Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120131773
Agency No. P201201222
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 5, 2013, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Supply Technician at the Agency's Federal Medical Center facility in Butner, North Carolina.
On December 20, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African American) and sex (male) when from January 29, 2001 through the present, management failed to approve his multiple requests to have his Medical Supply Technician, GS-06, position reclassified to a higher-graded position. Complainant further alleged that the most recent denial was on February 10, 2009, and a further attempt to reclassify his position was initiated on February 2, 2012.
The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact, indicating that Complainant did not contact an EEO counselor until September 10, 2012, seven months after his most recent attempt (in February 2012) to have his position reclassified. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
In the instant case it is clear that Complainant has been trying to get his position reclassified for a long time. The record further indicates that the most recent attempt to reclassify Complainant's position was initiated in February 2012, although there is no indication that a decision has been made on this attempt. Complainant did not initiate EEO counseling on this matter until September 2012, seven months after the most recent reclassification process was initiated.
However, Complainant argues that his delay in initiating counseling should be excused because he did not develop a reasonable suspicion that discrimination based on his race and/or gender was at play until September 2012. Complainant alleges that in September 2012, he learned from another employee, for the first time, that several similarly situated white, female employees had had their positions reclassified. Once Complainant learned this information, he immediately contacted an EEO counselor. Under the circumstances of this case, we are persuaded that Complainant did not reasonably suspect that discrimination might be a factor in the decision not the reclassify his position until September 2012. As such, we find that his EEO counselor contact was timely made.
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED, and the matter is REMANDED for further processing as set forth in the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. 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 (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0610)
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 (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
June 19, 2014
__________________
Date
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4,977 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120131581.pdf | 0120131581.pdf | PDF | application/pdf | 10,121 | March 16, 2013 | Appeal Number: 0120131581
Background:
At the time of events giving rise to this complaint, Complainant was working as an Air Traffic
Control Specialist in Training at the Camarillo Air Traffic Control Tower. Prior to this
assignment, Complainant had twice failed to “certify” at th e Los Angeles Air Routing Traff ic
Control Center where he had worked for many years as a “certified professional controller in
training.” The Camarillo Air Traffic Control Tower was considered “a lower level faci lity” in
terms of air traffic control compl exity.
On October 14, 2010, Complainant filed an EEO complaint alleging that the Agency harassed
him on the bases of ra ce (African -American), age (43), and in reprisal for prior protected EEO
activity by prolonging the amount of time he spent in training so that he lost almost an entire
year of premium pay. Complainant alleged that he was held to unrealistic expectations,
consistently incorrectly assessed and falsely accused of errors. He also claims that his
managers improperly interfered with the processing of his EEO complaint.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely reque sted a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s motion for summary judgment,
and issued a decision on February 14, 2013.
In his decision, the AJ found it undisputed that Complainant’s training record was “spotty” and
exhibited a number of deficiencies and shortcomings. The AJ painstakingly examined the following incidents of alleged harassment: (i) his Front Line Manager set unrealistic
expectations; (ii) he was denied a request to change training teams; (iii) his train ing team
incorrectly determined that he did not meet the acceptable standard; (iv) his on -the-job training
instructors were improperly influenced in their adverse recommendation decision regarding his certification; (v) his Front Line Manage r falsely indicated that training reports contained "lies
and were untrue ,” and instructed trainers to reconstruct training reports that were too
favorable; and (vi) he was falsely accused of causing an operational error. The AJ concluded that none of these incidents occurred as Complainant alleged. He further concluded:
Through admissible evidence, the agency articulated neutral, non -discriminatory
and legally s ufficient reasons for delaying C omplainant's certification until he
successfully passed th e skills check test administered by the Front Line Manager
in October of 2010. Complainant became fully certified on November 7, 2010.
Complainant provided no evidence, whatsoever, indicating that he passed a
skills check test entitling him to such certif ication prior to October of 2010, or
that his previous failures to pass the skills check test w ere in any way
discriminatory or retaliatory. An independent Training Review Board reviewed
Complainant's training history in Augus t of 2010 and determined that
Complainant could not then be certified on account of his performance
deficiencies. The Board recommended that C omplainant's training period be
extended to accommodate Complainant’s need to correct his shortcomings. This
recommendation was adopted by the A gency and led to C omplainant's
certification as an Air Traffic Controller. There is no evidence to the contrary.
AJ Decision at 15. The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Legal Analysis:
The Commission deems the appeal timely and accepts it
for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency’s final order .
BACKGROUND
At the time of events giving rise to this complaint, Complainant was working as an Air Traffic
Control Specialist in Training at the Camarillo Air Traffic Control Tower. Prior to this
assignment, Complainant had twice failed to “certify” at th e Los Angeles Air Routing Traff ic
Control Center where he had worked for many years as a “certified professional controller in
training.” The Camarillo Air Traffic Control Tower was considered “a lower level faci lity” in
terms of air traffic control compl exity.
On October 14, 2010, Complainant filed an EEO complaint alleging that the Agency harassed
him on the bases of ra ce (African -American), age (43), and in reprisal for prior protected EEO
activity by prolonging the amount of time he spent in training so that he lost almost an entire
year of premium pay. Complainant alleged that he was held to unrealistic expectations,
consistently incorrectly assessed and falsely accused of errors. He also claims that his
managers improperly interfered with the processing of his EEO complaint.
At the | ,
Com
plainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120131581
Hearing No. 480- 2011- 00360X
Agency No. 201023458FAA06
DECISION
On March 16, 2013, Complainant filed an appeal from the Agency’s February 22, 2013 final
order concerning his equal employment opportunity (EEO) complaint alleging 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. The Commission deems the appeal timely and accepts it
for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency’s final order .
BACKGROUND
At the time of events giving rise to this complaint, Complainant was working as an Air Traffic
Control Specialist in Training at the Camarillo Air Traffic Control Tower. Prior to this
assignment, Complainant had twice failed to “certify” at th e Los Angeles Air Routing Traff ic
Control Center where he had worked for many years as a “certified professional controller in
training.” The Camarillo Air Traffic Control Tower was considered “a lower level faci lity” in
terms of air traffic control compl exity.
On October 14, 2010, Complainant filed an EEO complaint alleging that the Agency harassed
him on the bases of ra ce (African -American), age (43), and in reprisal for prior protected EEO
activity by prolonging the amount of time he spent in training so that he lost almost an entire
year of premium pay. Complainant alleged that he was held to unrealistic expectations,
consistently incorrectly assessed and falsely accused of errors. He also claims that his
managers improperly interfered with the processing of his EEO complaint.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely reque sted a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s motion for summary judgment,
and issued a decision on February 14, 2013.
In his decision, the AJ found it undisputed that Complainant’s training record was “spotty” and
exhibited a number of deficiencies and shortcomings. The AJ painstakingly examined the following incidents of alleged harassment: (i) his Front Line Manager set unrealistic
expectations; (ii) he was denied a request to change training teams; (iii) his train ing team
incorrectly determined that he did not meet the acceptable standard; (iv) his on -the-job training
instructors were improperly influenced in their adverse recommendation decision regarding his certification; (v) his Front Line Manage r falsely indicated that training reports contained "lies
and were untrue ,” and instructed trainers to reconstruct training reports that were too
favorable; and (vi) he was falsely accused of causing an operational error. The AJ concluded that none of these incidents occurred as Complainant alleged. He further concluded:
Through admissible evidence, the agency articulated neutral, non -discriminatory
and legally s ufficient reasons for delaying C omplainant's certification until he
successfully passed th e skills check test administered by the Front Line Manager
in October of 2010. Complainant became fully certified on November 7, 2010.
Complainant provided no evidence, whatsoever, indicating that he passed a
skills check test entitling him to such certif ication prior to October of 2010, or
that his previous failures to pass the skills check test w ere in any way
discriminatory or retaliatory. An independent Training Review Board reviewed
Complainant's training history in Augus t of 2010 and determined that
Complainant could not then be certified on account of his performance
deficiencies. The Board recommended that C omplainant's training period be
extended to accommodate Complainant’s need to correct his shortcomings. This
recommendation was adopted by the A gency and led to C omplainant's
certification as an Air Traffic Controller. There is no evidence to the contrary.
AJ Decision at 15. The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue
of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of
the non- moving party. Celotex v. Catrett , 477 U.S. 317, 322- 23 (1986); Oliver v. Digital
Equip. Corp. , 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to
affect the outcome of the case.
To prove his harassment claim, Complainant must establish that he was subjected to conduct
that was either so severe or so pervasive that a “reasonable person” in his position would have
found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis,
i.e.
, in this case, race, age or prior protected activity. Only
if Complainant establishes both of those elements, does the question of Agency liability present
itself.
We note that it did take Complainant almost seven months to pass the skills check test, which
given his approximately 15 years of experience seems unusual. However, he returned to
Camarillo because of his failure to certify in Los Angeles, despite those years of experience. Complainant alleges that in Camarillo, he was expected to be perfect, an “essentially”
unachievable standard. Even assuming this to be true, we find no evidence that this was
because of his race, age or prior protected activity. In addition, we agree with the AJ that
there was no persuasive evidence that management interfered with the processing of this EEO
complaint. We discern no basis to disturb the AJ’s decision, and we AFFIRM the Agency’s
final order.
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 t he 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) c alendar 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 req uest 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 off icial 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
Date
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4,978 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120131573.pdf | 0120131573.pdf | PDF | application/pdf | 10,464 | U.S. EQUAL EMPLOYMEN T OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency. | February 20, 2013 | Appeal Number: 0120131573
Background:
On February 20, 2013, Complainant filed a formal complaint alleging that the Agency
subjected her to discrimination on the bases of disability ( chronic immune degenerative disease
and mental disability), age (49), and in reprisal for prior protected EEO activity when: on
October 10, 2012, Complainant learned t hat she was not selected for the position of Social
Insurance Specialist GS -9/22 under Vacancy Announcement Number SN678090- 12-ROII 169
CREDO. In the EEO Counselor’s report, Complainant stated that she received treatment for a
mental disability.
On February 22, 2013, the Agency advised Complainant that her complaint would be accepted
for investigation. The Agency further advised Complainant that the part of her complaint
alleging disability discrimination based on her mental disability would be held in abeyance as
part of the Jantz v. Social Security Administration
class complaint that had been certified by
the EEOC.
In October 2008, in the case of Jantz v. Social Security Administration , an EEOC
Administrative Judge ( AJ) certified the following c lass action against the Agency:
All current and former employees with targeted disabilities at the Social Security
Administration who, on or after August 22, 2005, have applied for and made a Best
Qualified List for promotion, but were not selected for promotion.
The AJ stated that EEOC defines the following as targeted disabilities: deafness, blindness,
missing extremities, partial paralysis, complete paralysis, convulsive disorders, mental
retardation, mental illness, and genetic and physical condition s affecting the limbs and/or
spine. On appeal , the Commission affirmed the AJ's decision. Jantz v. Social Security
Administration , EEOC Appeal No. 0720090019 (Aug. 25, 2010), request for reconsideration
denied
, EEOC Request No. 0520110045 (Jan. 4, 2011).
In the instant appeal, Complainant states that the class complaint is currently stayed while the
parties are engaged in motion practice. Complainant notes the Agency has filed a motion to
decertify the class. She notes there is no timeline for when the AJ will issue an opinion on the
Agency’s motion for decertification. In addition, Complainant states that her disability does not match the definition of a targeted disability. Complainant requests to be exclude d from the
class complaint.
In response t o Complainant’s appeal, the Agency notes that Complainant has indicated she
suffers from chronic and degenerative autoimmune disease and mental illness. The Agency notes that after the EEO investigation into Complainant’s claims was completed , it notified
Complainant it would hold her complaint in abeyance and subsume the disability claim into the
Jantz class complaint, since she claimed in part that her nonselection was due to discrimination
based on a targeted disability (mental illness). The Agency argues that Complainant’s
disability non selection claims are identical to those of the class in the Jantz
complaint and
therefore they were properly subsumed into the class complaint. The Agency notes the AJ ’s
Legal Analysis:
the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
On February 20, 2013, Complainant filed a formal complaint alleging that the Agency
subjected her to discrimination on the bases of disability ( chronic immune degenerative disease
and mental disability), age (49), and in reprisal for prior protected EEO activity when: on
October 10, 2012, Complainant learned t hat she was not selected for the position of Social
Insurance Specialist GS -9/22 under Vacancy Announcement Number SN678090- 12-ROII 169
CREDO. In the EEO Counselor’s report, Complainant stated that she received treatment for a
mental disability.
On February 22, 2013, the Agency advised Complainant that her complaint would be accepted
for investigation. The Agency further advised Complainant that the part of her complaint
alleging disability discrimination based on her mental disability would be held in abeyance as
part of the Jantz v. Social Security Administration
class complaint that had been certified by
the EEOC.
In October 2008, in the case of Jantz v. Social Security Administration , an EEOC
Administrative Judge ( AJ) certified the following c lass action against the Agency:
All current and former employees with targeted disabilities at the Social Security
Administration who, on or after August 22, 2005, have applied for and made a Best
Qualified List for promotion, but were not selected for promotion.
The AJ stated that EEOC defines the following as targeted disabilities: deafness, blindness,
missing extremities, partial paralysis, complete paralysis, convulsive disorders, mental
retardation, mental illness, and genetic and physical condition s affecting the limbs and/or
spine. On appeal , the Commission affirmed the AJ's decision. Jantz v. Social Security
Administration , EEOC Appeal No. 0720090019 (Aug. 25, 2010), request for reconsideration
denied
, EEOC Request No. 0520110045 (Jan. 4, 2011).
In the instant appeal, Complainant states that the class complaint is currently stayed while the
parties are engaged in motion practice. Complainant notes the Agency has filed a motion to
decertify the class. She notes there is no timeline for when the AJ will issue an opinion on the
Agency’s motion for decertification. In addition, Complainant states that her disability does not match the definition of a targeted disability. Complainant requests to be exclude d from the
class complaint.
In response t o Complainant’s appeal, the Agency notes that Complainant has indicated she
suffers from chronic and degenerative autoimmune disease and mental illness. The Agency notes that after the EEO investigation into Complainant’s claims was completed , it notified
Complainant it would hold her complaint in abeyance and subsume the disability claim into the
Jantz class complaint, since she claimed in part that her nonselection was due to discrimination
based on a targeted disability (mental illness). The Agency argues that Complainant’s
disability non selection claims are identical to those of the class in the Jantz
complaint and
therefore they were properly subsumed into the class complaint. The Agency notes the AJ ’s
decision on the decertification motion is still pending and the class complaint has not been
decertified . The Agency also states that Complainant provides no specific information to
explain why the mental disability for which she receives treatment should not be considered
either an int ellectual disability or mental illness, both of which qualify as targeted disabilities.
ANALYSIS AND FINDINGS
The Commission notes that it has previously held that a complainant may appeal an agency
decision to hold an individual complaint in abeyance during the processing of a related class
complaint. See Roos v. United States Postal Service
, EEOC Request No. 05 920101 (February
13, 1992). In addition, Equal Employment Opportunity Manage ment Directive -110, Chapter
8, § III(C) (November 9, 1999) provides, in relevant part, that “an individual complaint that is
filed before or after the class complaint is filed and that comes within the definition of the class
claim(s), will not be dismissed but will be subsumed within the class complaint.”
In the present complaint, Complainant claims that s he was subjected to discrimination based in
part on her disability when she was not selected for t he position at issue . Complainant states
she was placed on the best qualified list for the position, but not selected. Complainant also
identified her disability as a mental condition for which she receives treatment. We note
mental illness is one of the disabilities EEOC has deemed a targeted disability. With regard to
her contention that she be excluded from the class complaint, we note that class members may not “opt out” of the defined class; however, they do not have to participate in the class or file a
claim for individual relief. Equal Employment Opportunity Management Directive for 29
C.F.R. P art 1614 (EEO MD- 110), Ch. 8, Section V(c) (November 9, 1999). With regard to
Complainant’s claim that the Agency moved for de certification of the class complaint, the
Agency notes the AJ ’s decision on this motion is still pending and the class complaint has not
been decertified . Moreover, we note that if a class complaint is dismissed at the certification
stage, the individual complaint may still proceed, unless the same or another basis for dismissal applies. EEO MD -110, Ch. 8, Sec. III(c). Upon review, we find that the Agency
correctly held Complainant’s claim that she was denied a promotion based on her disability, in
abeyance.
The Agency also indicated that Complainant's remaining claims concerning the bases of age
and reprisal are being processed pursuant to EEOC Regulations 29 C.F.R. Part 1614.
Final Decision:
Accordingly, the Agency’s decision to hold Complainant’s claim of disability discrimination in abeyance is AFFIRMED. | U.S. EQUAL EMPLOYMEN T OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120131573
Agency No. NY -13-0112
DECISION
Complainant filed an appeal with this Commission concerning her 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following
reasons, the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
On February 20, 2013, Complainant filed a formal complaint alleging that the Agency
subjected her to discrimination on the bases of disability ( chronic immune degenerative disease
and mental disability), age (49), and in reprisal for prior protected EEO activity when: on
October 10, 2012, Complainant learned t hat she was not selected for the position of Social
Insurance Specialist GS -9/22 under Vacancy Announcement Number SN678090- 12-ROII 169
CREDO. In the EEO Counselor’s report, Complainant stated that she received treatment for a
mental disability.
On February 22, 2013, the Agency advised Complainant that her complaint would be accepted
for investigation. The Agency further advised Complainant that the part of her complaint
alleging disability discrimination based on her mental disability would be held in abeyance as
part of the Jantz v. Social Security Administration
class complaint that had been certified by
the EEOC.
In October 2008, in the case of Jantz v. Social Security Administration , an EEOC
Administrative Judge ( AJ) certified the following c lass action against the Agency:
All current and former employees with targeted disabilities at the Social Security
Administration who, on or after August 22, 2005, have applied for and made a Best
Qualified List for promotion, but were not selected for promotion.
The AJ stated that EEOC defines the following as targeted disabilities: deafness, blindness,
missing extremities, partial paralysis, complete paralysis, convulsive disorders, mental
retardation, mental illness, and genetic and physical condition s affecting the limbs and/or
spine. On appeal , the Commission affirmed the AJ's decision. Jantz v. Social Security
Administration , EEOC Appeal No. 0720090019 (Aug. 25, 2010), request for reconsideration
denied
, EEOC Request No. 0520110045 (Jan. 4, 2011).
In the instant appeal, Complainant states that the class complaint is currently stayed while the
parties are engaged in motion practice. Complainant notes the Agency has filed a motion to
decertify the class. She notes there is no timeline for when the AJ will issue an opinion on the
Agency’s motion for decertification. In addition, Complainant states that her disability does not match the definition of a targeted disability. Complainant requests to be exclude d from the
class complaint.
In response t o Complainant’s appeal, the Agency notes that Complainant has indicated she
suffers from chronic and degenerative autoimmune disease and mental illness. The Agency notes that after the EEO investigation into Complainant’s claims was completed , it notified
Complainant it would hold her complaint in abeyance and subsume the disability claim into the
Jantz class complaint, since she claimed in part that her nonselection was due to discrimination
based on a targeted disability (mental illness). The Agency argues that Complainant’s
disability non selection claims are identical to those of the class in the Jantz
complaint and
therefore they were properly subsumed into the class complaint. The Agency notes the AJ ’s
decision on the decertification motion is still pending and the class complaint has not been
decertified . The Agency also states that Complainant provides no specific information to
explain why the mental disability for which she receives treatment should not be considered
either an int ellectual disability or mental illness, both of which qualify as targeted disabilities.
ANALYSIS AND FINDINGS
The Commission notes that it has previously held that a complainant may appeal an agency
decision to hold an individual complaint in abeyance during the processing of a related class
complaint. See Roos v. United States Postal Service
, EEOC Request No. 05 920101 (February
13, 1992). In addition, Equal Employment Opportunity Manage ment Directive -110, Chapter
8, § III(C) (November 9, 1999) provides, in relevant part, that “an individual complaint that is
filed before or after the class complaint is filed and that comes within the definition of the class
claim(s), will not be dismissed but will be subsumed within the class complaint.”
In the present complaint, Complainant claims that s he was subjected to discrimination based in
part on her disability when she was not selected for t he position at issue . Complainant states
she was placed on the best qualified list for the position, but not selected. Complainant also
identified her disability as a mental condition for which she receives treatment. We note
mental illness is one of the disabilities EEOC has deemed a targeted disability. With regard to
her contention that she be excluded from the class complaint, we note that class members may not “opt out” of the defined class; however, they do not have to participate in the class or file a
claim for individual relief. Equal Employment Opportunity Management Directive for 29
C.F.R. P art 1614 (EEO MD- 110), Ch. 8, Section V(c) (November 9, 1999). With regard to
Complainant’s claim that the Agency moved for de certification of the class complaint, the
Agency notes the AJ ’s decision on this motion is still pending and the class complaint has not
been decertified . Moreover, we note that if a class complaint is dismissed at the certification
stage, the individual complaint may still proceed, unless the same or another basis for dismissal applies. EEO MD -110, Ch. 8, Sec. III(c). Upon review, we find that the Agency
correctly held Complainant’s claim that she was denied a promotion based on her disability, in
abeyance.
The Agency also indicated that Complainant's remaining claims concerning the bases of age
and reprisal are being processed pursuant to EEOC Regulations 29 C.F.R. Part 1614.
CONCLUSION
Accordingly, the Agency’s decision to hold Complainant’s claim of disability discrimination in
abeyance 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 Fed eral 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, unl ess 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 ver y
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 rec eive 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 paym ent 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 discr etion 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
Date
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4,979 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120130341.txt | 0120130341.txt | TXT | text/plain | 10,266 | Alfonso Diaz Del Castillo, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. | November 6, 2012 | Appeal Number: 0120130341
Background:
At the time of events giving rise to this complaint, Complainant had a case pending a hearing before an EEOC Administrative Judge (AJ). Complainant indicated that the AJ provided him with the opportunity to prepare a proposal for a global agreement settling a number of EEO complaints. In order to properly review his complaint files and draft the global settlement proposal, Complainant asserted he needed official time from the Agency, and that he intended to use the rights to official time provided him in an earlier settlement agreement, executed in December 2007. The December 2007 settlement agreement provided, in pertinent part, that:
(17) The Agency recognized that, pursuant to 29 C.F.R. § 1614.605(b), Complainant shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to the Agency and EEOC requests for information. To this end, the Agency's EEO officials will notify Complainant's Supervisors of this right to reasonable amounts of official time to prepare his complaint and respond to the Agency requests for information and official time to attend meeting related to his EEO Complaint. The Parties agree to adhere to the requirements set forth in EEOC Management Directive (MD) 110, Chapter 6, Section VII(C).
By letter to the Agency dated October 5, 2011, Complainant alleged that the Agency was in breach of the December 2007 settlement agreement, and requested that the Agency specifically implement its terms. Complainant alleged that the Agency failed to provide him with reasonable official time to prepare his global settlement proposal. Complainant indicated that he needed official time in order to review tens of thousands of pages of documents. Complainant requested that his supervisor (Supervisor) provide him with approximately one month of official time during the settlement agreement review period (September 26 - October 31, 2011). The Supervisor provided Complainant with two hours per day for this period. Complainant believed that the Supervisor's action was in violation of the December 2007 settlement agreement.
In a November 4, 2011 decision, the Agency concluded the Supervisor provided Complainant with two hours per day in official time until the end of the period the AJ allowed for submission of Complainant's settlement proposal, which it concluded was reasonable. Therefore, the Agency determined that it had not breached the settlement agreement.
Complainant appealed the Agency's decision to the Commission. In a decision issued on March 27, 2012, we found that, regardless of the global settlement agreement, Complainant was entitled to official time. Alfonso Diaz Del Castillo v. Department of Homeland Security, EEOC Appeal No. 0120120525. As such, we remanded the matter to the Agency and ordered the Agency to conduct an additional inquiry into Complainant's claim that he was denied official time, including obtaining from Complainant the details of the alleged denial and any evidence supporting his claim. The Agency was then directed to issue a new decision, with appeal rights to the Commission, as to whether Complainant was denied a reasonable amount of official time.
In compliance with our order, the Agency requested the information from Complainant regarding his claim for official time involved in reviewing his records prior to the global settlement agreement. Complainant failed to respond to the Agency's requests. Following the failure to provide information, the Agency issued a decision finding that the Supervisor's grant of official time was appropriate.
Complainant filed the instant appeal.
On appeal, Complainant asserted that the Supervisor's allowance of two hours per day until the end of the period the AJ allowed for submission of Complainant's settlement proposal did not adequately compensate him for the entire month (September 26 - October 31, 2011) he spent wading through all the documents in preparation for his draft. Complainant also indicated that during this time, he was recuperating from surgery for his pancreatic cancer and was in a sick leave status. He asserted that he was able prepare his draft of the global settlement agreement from home just as he could have done in his office. As such, he requested that all of his sick leave hours should have been restored during this time.
Legal Analysis:
The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant had a case pending a hearing before an EEOC Administrative Judge (AJ). Complainant indicated that the AJ provided him with the opportunity to prepare a proposal for a global agreement settling a number of EEO complaints. In order to properly review his complaint files and draft the global settlement proposal, Complainant asserted he needed official time from the Agency, and that he intended to use the rights to official time provided him in an earlier settlement agreement, executed in December 2007. The December 2007 settlement agreement provided, in pertinent part, that:
(17) The Agency recognized that, pursuant to 29 C.F.R. § 1614.605(b), Complainant shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to the Agency and EEOC requests for information. To this end, the Agency's EEO officials will notify Complainant's Supervisors of this right to reasonable amounts of official time to prepare his complaint and respond to the Agency requests for information and official time to attend meeting related to his EEO Complaint. The Parties agree to adhere to the requirements set forth in EEOC Management Directive (MD) 110, Chapter 6, Section VII(C).
By letter to the Agency dated October 5, 2011, Complainant alleged that the Agency was in breach of the December 2007 settlement agreement, and requested that the Agency specifically implement its terms. Complainant alleged that the Agency failed to provide him with reasonable official time to prepare his global settlement proposal. Complainant indicated that he needed official time in order to review tens of thousands of pages of documents. Complainant requested that his supervisor (Supervisor) provide him with approximately one month of official time during the settlement agreement review period (September 26 - October 31, 2011). The Supervisor provided Complainant with two hours per day for this period. Complainant believed that the Supervisor's action was in violation of the December 2007 settlement agreement.
In a November 4, 2011 decision, the Agency concluded the Supervisor provided Complainant with two hours per day in official time until the end of the period the AJ allowed for submission of Complainant's settlement proposal, which it concluded was reasonable. Therefore, the Agency determined that it had not breached the settlement agreement.
Complainant appealed the Agency's decision to the Commission. In a decision issued on March 27, 2012, we found that, regardless of the global settlement agreement, Complainant was entitled to official time. Alfonso Diaz Del Castillo v. Department of Homeland Security, EEOC Appeal No. 0120120525. As such, we remanded the matter to the Agency and ordered the Agency to conduct an additional inquiry into Complainant's claim that he was denied official time, including obtaining from Complainant the details of the alleged denial and any evidence supporting his claim. The Agency was then directed to issue a new decision, with appeal rights to the Commission, as to whether Complainant was denied a reasonable amount of official time.
In compliance with our order, the Agency requested the information from Complainant regarding his claim for official time involved in reviewing his records prior to the global settlement agreement. Complainant failed to respond to the Agency's requests. Following the failure to provide information, the Agency issued a decision finding that the Supervisor's grant of official time was appropriate.
Complainant filed the instant appeal.
On appeal, Complainant asserted that the Supervisor's allowance of two hours per day until the end of the period the AJ allowed for submission of Complainant's settlement proposal did not adequately compensate him for the entire month (September 26 - October 31, 2011) he spent wading through all the documents in preparation for his draft. Complainant also indicated that during this time, he was recuperating from surgery for his pancreatic cancer and was in a sick leave status. He asserted that he was able prepare his draft of the global settlement agreement from home just as he could have done in his office. As such, he requested that all of his sick leave hours should have been restored during this time.
ANALYSIS AND FINDINGS
Complainant asserted that he was denied reasonable official time necessary to review his pending EEO cases while drafting a proposed global settlement agreement. EEOC regulations provide a complainant with a right to a "reasonable amount of official time" to work on his/her EEO complaint. 29 C.F.R. § 1614.605(b). Specifically, "[i]f 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 agency and EEOC requests for information [emphasis added]." Id.
The record demonstrates that Complainant requested official time for over 30 days in September and October 2011, at the same time he requested sick leave. Complainant concedes he was out of work during this period following surgery. As such, Complainant was not "in duty status" during the time period he was requesting official time. | Alfonso Diaz Del Castillo,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120130341
Agency No. HS-05-TSA-002107
DECISION
On November 6, 2012, Complainant filed an appeal from the Agency's October 5, 2012, final decision concerning his request for official time. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant had a case pending a hearing before an EEOC Administrative Judge (AJ). Complainant indicated that the AJ provided him with the opportunity to prepare a proposal for a global agreement settling a number of EEO complaints. In order to properly review his complaint files and draft the global settlement proposal, Complainant asserted he needed official time from the Agency, and that he intended to use the rights to official time provided him in an earlier settlement agreement, executed in December 2007. The December 2007 settlement agreement provided, in pertinent part, that:
(17) The Agency recognized that, pursuant to 29 C.F.R. § 1614.605(b), Complainant shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to the Agency and EEOC requests for information. To this end, the Agency's EEO officials will notify Complainant's Supervisors of this right to reasonable amounts of official time to prepare his complaint and respond to the Agency requests for information and official time to attend meeting related to his EEO Complaint. The Parties agree to adhere to the requirements set forth in EEOC Management Directive (MD) 110, Chapter 6, Section VII(C).
By letter to the Agency dated October 5, 2011, Complainant alleged that the Agency was in breach of the December 2007 settlement agreement, and requested that the Agency specifically implement its terms. Complainant alleged that the Agency failed to provide him with reasonable official time to prepare his global settlement proposal. Complainant indicated that he needed official time in order to review tens of thousands of pages of documents. Complainant requested that his supervisor (Supervisor) provide him with approximately one month of official time during the settlement agreement review period (September 26 - October 31, 2011). The Supervisor provided Complainant with two hours per day for this period. Complainant believed that the Supervisor's action was in violation of the December 2007 settlement agreement.
In a November 4, 2011 decision, the Agency concluded the Supervisor provided Complainant with two hours per day in official time until the end of the period the AJ allowed for submission of Complainant's settlement proposal, which it concluded was reasonable. Therefore, the Agency determined that it had not breached the settlement agreement.
Complainant appealed the Agency's decision to the Commission. In a decision issued on March 27, 2012, we found that, regardless of the global settlement agreement, Complainant was entitled to official time. Alfonso Diaz Del Castillo v. Department of Homeland Security, EEOC Appeal No. 0120120525. As such, we remanded the matter to the Agency and ordered the Agency to conduct an additional inquiry into Complainant's claim that he was denied official time, including obtaining from Complainant the details of the alleged denial and any evidence supporting his claim. The Agency was then directed to issue a new decision, with appeal rights to the Commission, as to whether Complainant was denied a reasonable amount of official time.
In compliance with our order, the Agency requested the information from Complainant regarding his claim for official time involved in reviewing his records prior to the global settlement agreement. Complainant failed to respond to the Agency's requests. Following the failure to provide information, the Agency issued a decision finding that the Supervisor's grant of official time was appropriate.
Complainant filed the instant appeal.
On appeal, Complainant asserted that the Supervisor's allowance of two hours per day until the end of the period the AJ allowed for submission of Complainant's settlement proposal did not adequately compensate him for the entire month (September 26 - October 31, 2011) he spent wading through all the documents in preparation for his draft. Complainant also indicated that during this time, he was recuperating from surgery for his pancreatic cancer and was in a sick leave status. He asserted that he was able prepare his draft of the global settlement agreement from home just as he could have done in his office. As such, he requested that all of his sick leave hours should have been restored during this time.
ANALYSIS AND FINDINGS
Complainant asserted that he was denied reasonable official time necessary to review his pending EEO cases while drafting a proposed global settlement agreement. EEOC regulations provide a complainant with a right to a "reasonable amount of official time" to work on his/her EEO complaint. 29 C.F.R. § 1614.605(b). Specifically, "[i]f 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 agency and EEOC requests for information [emphasis added]." Id.
The record demonstrates that Complainant requested official time for over 30 days in September and October 2011, at the same time he requested sick leave. Complainant concedes he was out of work during this period following surgery. As such, Complainant was not "in duty status" during the time period he was requesting official time. Accordingly, the Agency was within its right to deny Complainant's request for additional official time beyond the hours provided by the Supervisor. See Nottage v. Dep't of Commerce, EEOC Appeal No. 0120123167 (March 22, 2013) (affirming the denial of official time where Complainant had requested advanced sick leave and annual leave and was not in duty status at the time of his request).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's decision that Complainant failed to prove that he was denied a reasonable amount of official time to prepare a draft of a global settlement agreement.
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
April 4, 2013
__________________
Date
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4,980 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120130290.txt | 0120130290.txt | TXT | text/plain | 10,202 | Ebony N. Williams, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency. | September 19, 2012 | Appeal Number: 0120130290
Background:
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk -PS-06, at the Agency's Alexandria, Louisiana Post Office.
On September 1, 2012, Complainant filed a formal EEO complaint alleging that the Agency subjected her to a discriminatory hostile work environment on the bases of race (African-American), sex (female), color, disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when management harassed her on an ongoing basis.
The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, asserting the alleged harassment was directly related to Complainant's Family and Medical Leave Act (FMLA)-approved condition. Therefore, the Agency reasoned that the matter raised in the complaint is under the U.S. Department of Labor's jurisdiction and should not be in the EEO process. The instant appeal followed. On appeal, Complainant claims that she was constructively discharged as a result of the intolerable working conditions created by the harassment.
Legal Analysis:
The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). However, in this case, it does not appear that Complainant is contesting a decision under the FMLA. Rather, a fair reading of her complaint in conjunction with the related EEO counseling report indicates that Complainant is asserting that Agency managers have engaged in an ongoing effort to harass her because of her race, color, sex, disability and reprisal by repeatedly asking her for information about her FMLA-approved medical condition; discussing her medical condition with other employees; not communicating with her verbally; forcing her to take a position with split days off; requiring her to work four hours on her non-scheduled day off; denying her sick leave requests; and not taking action against a co-worker for an inappropriate remark in reference to African-American employees.
These allegations are sufficient to state a claim of ongoing discriminatory harassment under the EEOC regulations. Complainant has alleged that she 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 (April 21, 1994). We also note that Complainant has claimed on appeal that the harassment eventually led to her constructive discharge from the Agency. As this is clearly related to her harassment claim, her complaint should be amended to add the constructive discharge claim. | Ebony N. Williams,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120130290
Agency No. 4G-700-0118-12
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 19, 2012, dismissing her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk -PS-06, at the Agency's Alexandria, Louisiana Post Office.
On September 1, 2012, Complainant filed a formal EEO complaint alleging that the Agency subjected her to a discriminatory hostile work environment on the bases of race (African-American), sex (female), color, disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when management harassed her on an ongoing basis.
The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, asserting the alleged harassment was directly related to Complainant's Family and Medical Leave Act (FMLA)-approved condition. Therefore, the Agency reasoned that the matter raised in the complaint is under the U.S. Department of Labor's jurisdiction and should not be in the EEO process. The instant appeal followed. On appeal, Complainant claims that she was constructively discharged as a result of the intolerable working conditions created by the harassment.
ANALYSIS AND FINDINGS
The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). However, in this case, it does not appear that Complainant is contesting a decision under the FMLA. Rather, a fair reading of her complaint in conjunction with the related EEO counseling report indicates that Complainant is asserting that Agency managers have engaged in an ongoing effort to harass her because of her race, color, sex, disability and reprisal by repeatedly asking her for information about her FMLA-approved medical condition; discussing her medical condition with other employees; not communicating with her verbally; forcing her to take a position with split days off; requiring her to work four hours on her non-scheduled day off; denying her sick leave requests; and not taking action against a co-worker for an inappropriate remark in reference to African-American employees.
These allegations are sufficient to state a claim of ongoing discriminatory harassment under the EEOC regulations. Complainant has alleged that she 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 (April 21, 1994). We also note that Complainant has claimed on appeal that the harassment eventually led to her constructive discharge from the Agency. As this is clearly related to her harassment claim, her complaint should be amended to add the constructive discharge claim.
Accordingly, the Agency's dismissal decision is REVERSED and the complaint is REMANDED to the Agency for further processing pursuant to the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claims (ongoing harassment culminating in a constructive discharge) in accordance with 29 C.F.R. § 1614.108 et seq. 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 (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0610)
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 (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
March 7, 2013
__________________
Date
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4,981 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120122803.txt | 0120122803.txt | TXT | text/plain | 10,402 | May 22, 2012 | Appeal Number: 0120122803
Background:
During the period at issue, Complainant worked as a Metal Forming Machine Operator, WG-3869, at the Agency's Coining Division facility in Denver, Colorado. On September 7, 2011, she filed an EEO complaint alleging what has been identified as the "Issue Presented." The Agency accepted the complaint for investigation and, at the conclusion thereof, provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ) or, alternatively, a final decision from the Agency based on the record.
Complainant timely requested a hearing. Therefore, her case was forwarded to the appropriate EEOC District Office and assigned to an AJ. Complainant subsequently withdrew her hearing request, so the AJ assigned to her case returned the matter to the Agency of the issuance of a final agency decision pursuant to 29 C.F.R. § 1614.110(b). On May 22, 2012, the Agency issued its decision finding that Complainant failed to prove discrimination as alleged. Complainant thereafter filed this appeal. Neither party submitted contentions on appeal.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Legal Analysis:
The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented before the Commission is whether Complainant has proven that she was subjected to harassment based on race (African American), color (black), age (53) and reprisal (prior EEO activity).
BACKGROUND
During the period at issue, Complainant worked as a Metal Forming Machine Operator, WG-3869, at the Agency's Coining Division facility in Denver, Colorado. On September 7, 2011, she filed an EEO complaint alleging what has been identified as the "Issue Presented." The Agency accepted the complaint for investigation and, at the | Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(U.S. Mint),
Agency.
Appeal No. 0120122803
Hearing No. 540-2012-00109X
Agency No. MINT-11-0657-F
DECISION
Complainant timely filed an appeal from the Agency's May 22, 2012, final decision concerning her equal employment opportunity (EEO) complaint alleging 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. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented before the Commission is whether Complainant has proven that she was subjected to harassment based on race (African American), color (black), age (53) and reprisal (prior EEO activity).
BACKGROUND
During the period at issue, Complainant worked as a Metal Forming Machine Operator, WG-3869, at the Agency's Coining Division facility in Denver, Colorado. On September 7, 2011, she filed an EEO complaint alleging what has been identified as the "Issue Presented." The Agency accepted the complaint for investigation and, at the conclusion thereof, provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ) or, alternatively, a final decision from the Agency based on the record.
Complainant timely requested a hearing. Therefore, her case was forwarded to the appropriate EEOC District Office and assigned to an AJ. Complainant subsequently withdrew her hearing request, so the AJ assigned to her case returned the matter to the Agency of the issuance of a final agency decision pursuant to 29 C.F.R. § 1614.110(b). On May 22, 2012, the Agency issued its decision finding that Complainant failed to prove discrimination as alleged. Complainant thereafter filed this appeal. Neither party submitted contentions on appeal.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Complainant alleges that she was subjected to a hostile work environment based on race, color, age, and reprisal. To establish a successful claim of hostile environment harassment, Complainant must show that:
(1) she is a member of a statutorily protected class;
(2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected class;
(4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998).
Complainant alleges that she was subjected to harassment when the following events occurred to her at work when, in January 2011, her supervisor commented that Complainant "won this one" after the Office of Human Resources required that she be allowed to used a time-off award for sick leave she had requested pursuant to the Family Medical Leave; on June 22, 2011, her supervisor questioned where she was supposed to be and told her to "hop on it and hop on it now," on June 22, 2011, her supervisor told her he did not want to talk to her and that he was "getting tired of seeing all you people in that room," on June 23, 2011, her supervisor sarcastically commented, "Oh, [Complainant] came in today...I did not think she was...," on August 4, 2011, her supervisor instituted a new rule regarding where employees were to take breaks; on August 9, 2011, the Coining Supervisor assigned Complainant to perform tasks that are not normally within her job duties; and on various occasions, her supervisor allowed a coworker to refuse various assignments but did not allow her to do that same. 1
Complainant further alleges that these events occurred because of her race, color, age, and prior EEO activity. However, she does not present evidence beyond bare assertions that her protected classes were the reasons these events allegedly occurred. Such assertions without more are insufficient to show that the actions of the supervisor and the Coining supervisor were motivated by her membership in any protected class. Therefore, Complainant has not established the third element required for a successful hostile work environment claim. Accordingly, her harassment claim fails.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hereby AFFIRM the Agency's final decision.
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
September 11, 2014
Date
1 Complainant also alleged harassment when, on May 10, 2011, she was issued a notice of warning for failure to properly wear required hearing protection. The Agency dismissed this allegation. Complainant does not expressly challenge the Agency's dismissal on appeal. Therefore, it is not addressed in this decision, as the Commission exercises its discretion to review only those issues specifically raised on appeal. EO MD-110, Chap. 9, at § IV.A ("Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion to focus only on those issues specifically raised on appeal.").
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4,982 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120122368.txt | 0120122368.txt | TXT | text/plain | 10,811 | Deleita Downs, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency. | January 18, 2012 | Appeal Number: 0120122368
Background:
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's facility in Cincinnati, Ohio.
On December 24, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female/pregnancy) when on June 3, 2011, she was sent home without pay when her request for light duty was denied.
The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO counselor contact. The instant appeal followed.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a Complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. See 29 C.F.R. § 1614.105(a)(2).
Here, the record indicates that Complainant's initial request for light duty was denied June 3, 2011. However, the record further shows that Complainant again requested light duty after she returned to her doctor on July 18, 2011, who lifted the "desk job only" restriction. Complainant advised the EEO Counselor in this matter that she received a letter, dated August 8, 2011, from an Agency official who again denied her request for light duty. Complainant also indicates in her formal complaint that she "received a letter stating that although desk restrictions were lifted, [she] could not return to work because of pregnancy restrictions." The Agency acknowledges that the letter Complainant mentions in her formal complaint is the August 8, 2011 letter Complainant received. Complainant also advised the Commission, on appeal, that the August 8, 2011 letter triggered her timely contact of an EEO Counselor on September 12, 2011.
There is no evidence of record that Complainant was waiting to gather facts or proof before contacting an EEO Counselor. Rather, the record indicates that she simply waited for the Agency's response regarding her light duty request after her doctor lifted the "desk only" restriction following her visit on July 18, 2011. Therefore, we find that Complainant's September 12, 2011 contact of an EEO Counselor regarding the August 8, 2011 letter she received from the Agency denying her light duty request was timely made.
Final Decision:
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. | Deleita Downs,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120122368
Agency No. 1C452002311
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 18, 20121, dismissing her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's facility in Cincinnati, Ohio.
On December 24, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female/pregnancy) when on June 3, 2011, she was sent home without pay when her request for light duty was denied.
The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO counselor contact. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a Complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. See 29 C.F.R. § 1614.105(a)(2).
Here, the record indicates that Complainant's initial request for light duty was denied June 3, 2011. However, the record further shows that Complainant again requested light duty after she returned to her doctor on July 18, 2011, who lifted the "desk job only" restriction. Complainant advised the EEO Counselor in this matter that she received a letter, dated August 8, 2011, from an Agency official who again denied her request for light duty. Complainant also indicates in her formal complaint that she "received a letter stating that although desk restrictions were lifted, [she] could not return to work because of pregnancy restrictions." The Agency acknowledges that the letter Complainant mentions in her formal complaint is the August 8, 2011 letter Complainant received. Complainant also advised the Commission, on appeal, that the August 8, 2011 letter triggered her timely contact of an EEO Counselor on September 12, 2011.
There is no evidence of record that Complainant was waiting to gather facts or proof before contacting an EEO Counselor. Rather, the record indicates that she simply waited for the Agency's response regarding her light duty request after her doctor lifted the "desk only" restriction following her visit on July 18, 2011. Therefore, we find that Complainant's September 12, 2011 contact of an EEO Counselor regarding the August 8, 2011 letter she received from the Agency denying her light duty request was timely made.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is REMANDED to the Agency for further processing in accordance with the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108 et seq. 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 (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0610)
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 (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 5, 2012
__________________
Date
1 The Agency's decision was erroneously dated January 11, 2011.
------------------------------------------------------------
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4,983 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120122346.txt | 0120122346.txt | TXT | text/plain | 10,344 | John C. Kannaby, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. | March 29, 2012 | Appeal Number: 0120122346
Background:
At the time of events giving rise to this complaint, Complainant worked as a Project Manager, GS-11, at the Agency's US Army Corps of Engineers - Chicago District facility in Chicago, Illinois.
On January 25, 2012, Complainant initiated contact with an EEO counselor, and on March 9, 2012, filed a formal EEO complaint, alleging that the Agency subjected him to discrimination:
1) on the basis of sex (male) because he is not being compensated equally to a GS-12 Project Manager (female), who he claims still requires training in areas in which he has ten years of experience;
2) on the bases of sex (male), religion (Protestant), and age (68) when he has not been selected for promotions to the GS-12 level;
3) on the basis of retaliation over the last twelve years because he had filed a lawsuit against the government and because of his attempts to obtain fair treatment for his collective bargaining unit members as president of his union.
In its final decision, the Agency initially noted that concerning claim 1, Complainant did not challenge the promotion of the GS-12 female comparator when she was selected in 2010. The Agency also noted that Complainant applied for this very same position, for which he was not selected. Thus, the Agency reasons that claim 1 is untimely because Complainant should have challenged his non-selection for the GS-12 position when the female comparator began working in the Chicago District in 2010. Regarding claim 2, the Agency determined that the information Complainant provided is not specific enough to state a claim, with the exception of the non-selection in claim 1. With respect to claim 3, the Agency noted that the record indicates that Complainant did not claim that he raised allegations of discrimination or participated in the EEO process when he filed his lawsuit or served as union president. Therefore, neither claim involves protected activity.
The instant appeal followed.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
With respect to claim 1, Complainant, a GS-11, contends that he is entitled to pay equal to his GS-12 female comparator, who was promoted by the Agency in 2010. However, the record shows that Complainant applied for this same GS-12 position in 2010, but was not selected. As he did not seek EEO counseling at the time of his non-promotion/non-selection, his claim is well beyond the forty-five (45) day limitation period. We note that Complainant has argued that he has asserted a claim of discrimination in compensation and, therefore, is entitled to raise the claim each time his wages are paid under the provisions of the Lilly Ledbetter Fair Pay Act of 2009. However, most courts have concluded that the time frame for challenging the denial of a standard promotion, in which someone was denied the opportunity to move to another position at higher pay, are not affected by the Lilly Ledbetter Fair Pay Act. See, e.g., Noel v. Boeing Co., 622 F.3d 266, 273 (3d Cir. 2010) ("On the basis of a plain and natural reading, we conclude that the [Lilly Ledbetter Fair Pay Act] does not apply to failure-to-promote claims."); Schuler v. Pricewaterhouse Coopers, L.L.P., 595 F.3d 370, 374 (D.C. Cir. 2010) ("in employment law the phrase 'discrimination in compensation' means paying different wages or providing different benefits to similarly situated employees, not promoting one employee but not another to a more remunerative position"). Therefore, the Agency's dismissal of claim 1 for untimely Counselor contact was proper.
With regard to claims 2 and 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).
Concerning claim 2, which lacks needed specificity, Complainant fails to state a viable claim of discrimination. Regarding claim 3, Complainant also does not state a viable claim of discrimination covered by the 29 C.F.R. Part 1614 complaints process. The record does not show that Complainant has prior EEO activity, which constitutes the basis of reprisal as a claim of unlawful employment discrimination. We also note that Complainant has not elaborated on how he was the alleged victim of unlawful retaliation. This also contributes to our determination that the Agency correctly dismissed these matters for failure to state a claim. Therefore, claims 2 - 3 were properly dismissed by the Agency.
Final Decision:
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. | John C. Kannaby,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120122346
Agency No. ARCECHI12JAN00621
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 29, 2012, dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Project Manager, GS-11, at the Agency's US Army Corps of Engineers - Chicago District facility in Chicago, Illinois.
On January 25, 2012, Complainant initiated contact with an EEO counselor, and on March 9, 2012, filed a formal EEO complaint, alleging that the Agency subjected him to discrimination:
1) on the basis of sex (male) because he is not being compensated equally to a GS-12 Project Manager (female), who he claims still requires training in areas in which he has ten years of experience;
2) on the bases of sex (male), religion (Protestant), and age (68) when he has not been selected for promotions to the GS-12 level;
3) on the basis of retaliation over the last twelve years because he had filed a lawsuit against the government and because of his attempts to obtain fair treatment for his collective bargaining unit members as president of his union.
In its final decision, the Agency initially noted that concerning claim 1, Complainant did not challenge the promotion of the GS-12 female comparator when she was selected in 2010. The Agency also noted that Complainant applied for this very same position, for which he was not selected. Thus, the Agency reasons that claim 1 is untimely because Complainant should have challenged his non-selection for the GS-12 position when the female comparator began working in the Chicago District in 2010. Regarding claim 2, the Agency determined that the information Complainant provided is not specific enough to state a claim, with the exception of the non-selection in claim 1. With respect to claim 3, the Agency noted that the record indicates that Complainant did not claim that he raised allegations of discrimination or participated in the EEO process when he filed his lawsuit or served as union president. Therefore, neither claim involves protected activity.
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
With respect to claim 1, Complainant, a GS-11, contends that he is entitled to pay equal to his GS-12 female comparator, who was promoted by the Agency in 2010. However, the record shows that Complainant applied for this same GS-12 position in 2010, but was not selected. As he did not seek EEO counseling at the time of his non-promotion/non-selection, his claim is well beyond the forty-five (45) day limitation period. We note that Complainant has argued that he has asserted a claim of discrimination in compensation and, therefore, is entitled to raise the claim each time his wages are paid under the provisions of the Lilly Ledbetter Fair Pay Act of 2009. However, most courts have concluded that the time frame for challenging the denial of a standard promotion, in which someone was denied the opportunity to move to another position at higher pay, are not affected by the Lilly Ledbetter Fair Pay Act. See, e.g., Noel v. Boeing Co., 622 F.3d 266, 273 (3d Cir. 2010) ("On the basis of a plain and natural reading, we conclude that the [Lilly Ledbetter Fair Pay Act] does not apply to failure-to-promote claims."); Schuler v. Pricewaterhouse Coopers, L.L.P., 595 F.3d 370, 374 (D.C. Cir. 2010) ("in employment law the phrase 'discrimination in compensation' means paying different wages or providing different benefits to similarly situated employees, not promoting one employee but not another to a more remunerative position"). Therefore, the Agency's dismissal of claim 1 for untimely Counselor contact was proper.
With regard to claims 2 and 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).
Concerning claim 2, which lacks needed specificity, Complainant fails to state a viable claim of discrimination. Regarding claim 3, Complainant also does not state a viable claim of discrimination covered by the 29 C.F.R. Part 1614 complaints process. The record does not show that Complainant has prior EEO activity, which constitutes the basis of reprisal as a claim of unlawful employment discrimination. We also note that Complainant has not elaborated on how he was the alleged victim of unlawful retaliation. This also contributes to our determination that the Agency correctly dismissed these matters for failure to state a claim. Therefore, claims 2 - 3 were properly dismissed by the Agency.
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
October 26, 2012
__________________
Date
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4,984 | https://www.eeoc.gov/sites/default/files/decisions/2024_02_05/2023003136.pdf | 2023003136.pdf | PDF | application/pdf | 10,565 | Russe ll D.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. | April
13, 2023 | Appeal Number: 2023003136
Legal Analysis:
the Commission’s website.
2 Although Complainant designated his race as “Hispanic,” the Commission recognizes this ter m
as an indication of national origin rather than race.
for prior protected EEO activity when on March 24, 2020, his appointment as a Reservist was
terminated.
After its investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of right to request a hearing before an Equal Employment
Opportunity Commission (EEOC or Commission) Administrative Judge (AJ) . Complainant
timely requested a hearing. The AJ subsequently issued a summary judgment decision in favor
of the Agency.
In the decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. The Agency ex plained that on September 19, 2019, Complainant’s
supervisor (S1) was informed that a complaint of sexual harassment had been made against Complainant. S1 then contacted the Agency’s Labor Employee Relations (LER) Specialist and
asked if Complainant was r equired to stand down because of this allegation. The next day, the
LER Specialist advised S1 that Complainant should be immediately demobilized. On that day,
September 20, 2019, S1 informed Complainant that a personnel matter had been brought to managem ent’s attention that required his immediate demobilization. The matter was sent to the
Agency’s Anti -Harassment Unit (AHU) for further processing. On February 3, 2020,
Complainant emailed the Agency’s Administrator and asked for his help stating that some one
had filed a sexual harassment claim against him and he was “just needing to know why someone
filed a case on [him.]” On February 6, 2020, the Agency notified Complainant that the Office
of Professional Responsibility (OPR) had taken over processing of all harassment cases from the
AHU. On March 18, 2020, the LER S pecialist informed Complainant’s supervisor that OPR
had completed the investigation and had substantiated the sexual harassment allegations. As a
result, o n March 24, 2020, the Agency terminated Complainant.
The Agency issued its final order fully adopting the AJ’s decision . The instant appeal followed.
The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 2 9 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence, is such that a reasonable fact finder could find in favor of the non -
moving party. Celotex v. Catrett , 477 U.S. 317, 322- 23 (1986); Oliver v. Digital Equip. Corp. ,
846 F.2d 103, 105 ( 1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual | Russe ll D.,1
Complainant,
v.
Alejandro N. Mayorkas,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 2023003136
Hearing No. 460- 2021- 00126X
Agency No. HS -FEMA -01319- 2020
DECISION
Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s April
13, 2023, final order concerning an equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights A ct of 1964 (Title VII),
as amended, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq., and Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
At the time of events giving rise to this complaint, Complainant was employed by the Agency
as a Ground Support Unit Leader, IM -02, Reservist, in the Incident Management Support
Division, Logistics Management Directorate, in Washington, D.C. Complainant was deployed on a temporary appointment to a disaster in Fort Worth, Texas . On June 11, 2020, Complainant
filed an EEO complaint alleging that the Agency discriminated against him on the bases of
race/national origin (Hispanic),
2 color, age (over 40), disability (Ulcer Colitis), and in reprisal
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non- parties and the Commission’s website.
2 Although Complainant designated his race as “Hispanic,” the Commission recognizes this ter m
as an indication of national origin rather than race.
for prior protected EEO activity when on March 24, 2020, his appointment as a Reservist was
terminated.
After its investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of right to request a hearing before an Equal Employment
Opportunity Commission (EEOC or Commission) Administrative Judge (AJ) . Complainant
timely requested a hearing. The AJ subsequently issued a summary judgment decision in favor
of the Agency.
In the decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. The Agency ex plained that on September 19, 2019, Complainant’s
supervisor (S1) was informed that a complaint of sexual harassment had been made against Complainant. S1 then contacted the Agency’s Labor Employee Relations (LER) Specialist and
asked if Complainant was r equired to stand down because of this allegation. The next day, the
LER Specialist advised S1 that Complainant should be immediately demobilized. On that day,
September 20, 2019, S1 informed Complainant that a personnel matter had been brought to managem ent’s attention that required his immediate demobilization. The matter was sent to the
Agency’s Anti -Harassment Unit (AHU) for further processing. On February 3, 2020,
Complainant emailed the Agency’s Administrator and asked for his help stating that some one
had filed a sexual harassment claim against him and he was “just needing to know why someone
filed a case on [him.]” On February 6, 2020, the Agency notified Complainant that the Office
of Professional Responsibility (OPR) had taken over processing of all harassment cases from the
AHU. On March 18, 2020, the LER S pecialist informed Complainant’s supervisor that OPR
had completed the investigation and had substantiated the sexual harassment allegations. As a
result, o n March 24, 2020, the Agency terminated Complainant.
The Agency issued its final order fully adopting the AJ’s decision . The instant appeal followed.
The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 2 9 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence, is such that a reasonable fact finder could find in favor of the non -
moving party. Celotex v. Catrett , 477 U.S. 317, 322- 23 (1986); Oliver v. Digital Equip. Corp. ,
846 F.2d 103, 105 ( 1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them,
de novo . See 29 C.F.R. §
1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based
on a de novo review…”); see also Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO -MD-110), at Chap. 9, § VI.B. (as revised , August 5, 2015)(providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo ).
In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence and must further establish that such facts are material under applicable law. Such a
dispute would indicate that a hearing is necessary to produce evidence to support a finding that
the agency was motivated by discriminatory or retaliatory animus. Here, however, Complainant
has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor.
Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of
the evidence did not establish that Complainant was discriminated or retaliated against by the
Agency as alleged. Accordingly, we AFFIRM the Agency’s final order ad opting the AJ’s
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the
Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration . A party shall have twenty (20) calendar days from
receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.40 5; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD -110), at Chap. 9 § VII.B (Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
. Alternatively, Complainant can submit his or
her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC
20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the
absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed
if OFO receives it by mail within five days of the expiration of the applicable filing period. See
29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s F
ederal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request
and/or statement or brief in opposition must also include proof of service on the other party,
unless Complainant files his or her request via the EEOC Public Portal, in which case no proof
of service is required.
Failure to file within the 30 -day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request. Any supporting documentation must be submitted together with the 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) c alendar 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 offic ial 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission fro m the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you.
You must submit the requests for wa iver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the p aragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).
FOR THE COMMISSION:
Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
October 18, 2023
Date | [
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4,985 | https://www.eeoc.gov/sites/default/files/decisions/2023_09_07/2023001577.pdf | 2023001577.pdf | PDF | application/pdf | 11,168 | Jimmy C ., Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. | December 22, 2022 | Appeal Number: 2021003818
Legal Analysis:
EEOC Regulations provide that the Com mission
may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c).
During the relevant time, Complainant worked as a Diagnostic Radiologist, GS -15, a t the
Clement J. Zablocki VA Medical Center’s Medical Imaging Division, in Milwaukee, Wisconsin.
Complainant’s direct supervisor was Division Manager for Medical Imaging (Division Manager) . Complainant’s second- level supervisor was the M edical C enter’s Chi ef of Staff.
On February 22, 2020, Complainant filed a formal EEO complaint alleging, in relevant part, that
the Agency discriminated against him based on disability (physical) and in reprisal for prior
protected EEO activity when during the processing of his reasonable accommodation request , the
Agency unlawfully disclosed his medical information to individuals who did not have a need to know. At the | Jimmy C .,
Complainant,
v.
Denis R. McDonough,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 2023001577
Appeal No. 2021003818
Agency No. 200J-0695-2020102050
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Jimmy C. v. Department of Veterans Affairs , EEOC
Appeal No. 2021003818 (December 22, 2022). EEOC Regulations provide that the Com mission
may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c).
During the relevant time, Complainant worked as a Diagnostic Radiologist, GS -15, a t the
Clement J. Zablocki VA Medical Center’s Medical Imaging Division, in Milwaukee, Wisconsin.
Complainant’s direct supervisor was Division Manager for Medical Imaging (Division Manager) . Complainant’s second- level supervisor was the M edical C enter’s Chi ef of Staff.
On February 22, 2020, Complainant filed a formal EEO complaint alleging, in relevant part, that
the Agency discriminated against him based on disability (physical) and in reprisal for prior
protected EEO activity when during the processing of his reasonable accommodation request , the
Agency unlawfully disclosed his medical information to individuals who did not have a need to know. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigat ion and notified Complainant on August 14, 2020, of his right to request a
hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f) , the Agency issued a final decision on May 24, 2021, pursuant to 29 C.F.R. §
1614.110(b) , which concluded that Complainant failed to prove his claim.
Complainant subsequently appealed the Agency’s final decision to the Commission and urged the Commission to rule in his favor because the documentary evidence unequivocally showed
that the Division Manager and Local Reasonable Accommodation Coordinator (LRAC) sent numerous emails about his reasonable accommodation request to individuals, such as t he
Administrative Officer, the Radiology Administrator, and Alternate Rehabilitation Coordinators, even though they were not involved in his reasonable accommodation request . Complainant also
sought, in relevant part, sanctions against the Agency for its f ailure to timely issue a final
decision and for failing to produce the Division Manager during the EEO investigation. In EEOC Appeal No. 2021003818 (Dec. 22, 2022), the appellate decision found that the Agency did not unlawfully disclose Complainant’s confidential medical information. In reaching this conclusion, the appellate decision acknowledged that the Administrative Officer was included in
a string of emails concerning Complainant’s reasonable accommodation request for a modified workspace. However, the appellate decision found that the Administrative Officer had a need to
know about Complainant’s reasonable accommodation request because the Administrative Officer’s duties included assigning office spaces. The appellate decision also found that the facility management employees who were notified about Complainant’s request for a modified
protective lead apron had a need to know in order to confirm that it was feasible for Complainant to use a lead apron in the examination room. As the record was devoi d of emails that divulged
Complainant’s medical records or included confidential medical information concerning Complainant’s disability, the appellate decision concluded that Complainant could not prevail on the merits of his claim. Though Complainant had requested sanctions against the Agency, the
appellate decision did not address this issue.
2 The instant request for reconsideration followed.
In his request for reconsideration, Complainant contends that the appellate decision erred in finding that the disclosure was lawful because none of Complainant’s medical records or confidential medical information were divulged.
2 The Commission notes that Complainant did not challenge the a ppellate decision’s
determination that he was not improperly denied official time.
He argues that this conclusion is contrary to the legal standard for confidentiality requirements
under the Rehabilitation Act , which hol ds that reasonable accommodation request s must be kept
confidential. Complainant also renews his request for sanctions against the Agency.
In response, the agency asserts that Complainant’s request for reconsideration and sanctions should be denied.
ANAL YSIS
Preliminary Matters – Sanctions
EEOC regulations state that an agency shall, in relevant part, provide a final decision within 60
days of the end of the 30- day period for the complainant to request a hearing or an immediate
final decision where the complainant has not requested either a hearing or a decision. 29 C.F.R. §
1614.110(b). In this case, the record reflects that the Agency sent a notice to Complainant on
August 14, 2020, advising him of his right to request either a hearing or a final decision . As
Complainant did not request either option, the Agency should have issued its final decision no
later than November 12, 2020.
Although the Agency ultimately issued its final decision on May 24, 2021, approximately 193
days late, the Comm ission finds that the Agency did not act in a manner to warrant
sanctions. See e.g., Josefina L. v. Soc. Sec. Admin., EEOC Appeal No. 0120142023 (July 19,
2016), req. for recon. den., EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the
Agency's 571- day delay in issuing a final decision did not warrant sanctions, as complainant did
not show she was prejudiced by the delay). Jocelyn R. v. Dep’t of Def., EEOC Appeal No.
0120152852 (Mar. 11, 2016) citing Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A 55147
(May 12, 2006) (declining to sanction an agency that issued a final decision after approximately
371 days).
With regard to Complainant’s request for a sanction due to the Agency not producing Division Manager during the course of the investigation, we note that the EEO Investigator attempted to
obtain an affidavit from Division Manager on four separate occasions. ROI at 99- 101. Division
Manager replied on two occasions responding first that he was on sick leave and unable to access the sources for hi s responses. In his second response, the Division Manager said that he was
leaving the Agency and would be on leave until his departure. We find that a good faith effort
was made to produce Division Manager prior to his departure from the Agency, and a sanction is not warranted.
Unlawful Disclosure
In the instant request for reconsideration, nothing that Complainant has submitted supports a determination that the prior decision affirming the Agency’s final order was clearly erroneous .
A request for re consideration is not a second appeal to the Commission.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110),
Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric. , EEOC Request No.
0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate
that the appellate decision involved a clearly erroneous interpretation of material fact or law, or
will have a substantial impact on the policies, practices, or operations of the Agency.
Complainant has not done so here.
The Commission has considered Complainant’s arguments that a number of individuals, not directly involved in his reasonable accommodation process, were included on email communication about his reasonable accommodation. Those included on email communications within the Agency consisted of EEO/Diversity and Inclusion Officer, Radiology Administrator, and two Alternate Rehabilitation Coordinators. The Commission finds that, even if these individuals did not require the info rmation contained within each specific email that they
received, they are individuals logically connected with the reasonable accommodation process. As such, Complainant has provided insufficient evidence to prove that the appellate decision was clearly er roneous.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal N o. 2021003818 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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. Failu re 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 wor k.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you.
You must submit the requests for waiver of court costs or appointment of an attorney
directly to the court, not the Commission. The court has the sole discretion to grant or deny
these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
August 16, 2023
Date | [
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"Jocelyn R. v. Dep’t of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016)",
"Lopez v. Dep't of Agric. , EEOC Request No. 0520070736 (Aug.... | [
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4,986 | https://www.eeoc.gov/sites/default/files/decisions/2023_09_07/2023001499.pdf | 2023001499.pdf | PDF | application/pdf | 9,615 | Andres M.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. | December 13, 2022 | Appeal Number: 2023001499
Background:
On July 28, 2022, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concer ns were unsuccessful.
On October 25, 2022, Complainant indi cated filed a formal complaint alleging that the Agency
subjected him to discrimination based on race (African American and Hispanic) , national origin
(American/Puerto Rican) , color (black) , disability, and in reprisal for prior EEO activity when:
1. In or about February 2022, management delayed Complainant’s onboarding
process as a volunteer because he was a non -Spanish speaking volunteer.
1 This case h as been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2. On an unspecified date, management required two Spanish s peaking volunteers to
monitor Complainant’s work assignments .
3. On June 14, 2022, management terminated Complainant from his volunteer
appointment.
In its December 13, 2022 , final decision, the Agency dismissed the formal complaint pursuant to
29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Specifically, the Agency determined that
Complainant’s volunteer status did not grant him an “employee” status within the meaning of EEO complaint processing re gulatio ns and, therefore, he lacked standing to fil e a complaint . The
Agency determined that Complainant’s position could best be categorized as volunteer work
because he did not have an employment contract with the Agency and did not receive remuneration or employment benefits.
The instant appeal follow ed. Complainant did not submit a brief on appeal.
Legal Analysis:
the Commission’s website.
2. On an unspecified date, management required two Spanish s peaking volunteers to
monitor Complainant’s work assignments .
3. On June 14, 2022, management terminated Complainant from his volunteer
appointment.
In its December 13, 2022 , final decision, the Agency dismissed the formal complaint pursuant to
29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Specifically, the Agency determined that
Complainant’s volunteer status did not grant him an “employee” status within the meaning of EEO complaint processing re gulatio ns and, therefore, he lacked standing to fil e a complaint . The
Agency determined that Complainant’s position could best be categorized as volunteer work
because he did not have an employment contract with the Agency and did not receive remuneration or employment benefits.
The instant appeal follow ed. Complainant did not submit a brief on appeal.
ANALYSIS AND FINDINGS
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 disability . 29 C.F.R. §§ 1614.103, .106(a).
The Commission’s fe deral 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 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.
Generally, only individuals who are an “employee or applicant for employment” have standing
to file an EEO complaint under the 29 C.F.R. Part 1614 regulations. See 29 C.F.R. § 1614.103.
The record reflects that , by his own admission, Complainant was a volunteer and worked without
compensation. Only in a narrow set of circumstances, usually where the volunteer is performing
services for an agency as part of an education program and receives remuneration , or where the
volunteer service l eads to regular employment, has the Commission held that a volunteer has
standing to file a n employment discrimination complaint. See Philips v. Department of Veterans
Affairs , EEOC Appeal No. 01893011 (Sept. 13, 1989) (citing Pollack v. Ric e University , 28 FEP
Cases 1273 (S.D. Texas 1982) (court found that because servi ce for remuneration as incidental to
scholastic program, plaintiff was a student and not an employee).
In his formal complaint filed on October 25, 2022, Complainant indicate d that he was not a
current or former employee and gave no indication that he was an applicant at that time. Rather,
Complainant states he was a member of the Federal Aviation Administration (FAA ) Safety
Team , and his position was as a “volunteer.”
Accordi ng to the FAA Manager and supporting documentation, Complainant did not receive any
monetary or insurance benefits for his work as a representative for the FAA Safety Team. Here ,
there is no evidence of a connection between volunteer work and subsequent regular
employment with the Agency. Therefore, we conclude the Agency properly dismissed the formal
complaint for failure to sta te a claim for lack of standing.. | Andres M.,1
Complainant,
v.
Alejandro N. Mayorkas,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 2023001499
Agency No. 2022-29613- FAA -03
DECISION
Complainant filed a timely appeal with the Equal Employme nt Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated December 13, 2022, dismissing a formal
complaint alleging 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.
BACKGROUND
On July 28, 2022, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concer ns were unsuccessful.
On October 25, 2022, Complainant indi cated filed a formal complaint alleging that the Agency
subjected him to discrimination based on race (African American and Hispanic) , national origin
(American/Puerto Rican) , color (black) , disability, and in reprisal for prior EEO activity when:
1. In or about February 2022, management delayed Complainant’s onboarding
process as a volunteer because he was a non -Spanish speaking volunteer.
1 This case h as been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2. On an unspecified date, management required two Spanish s peaking volunteers to
monitor Complainant’s work assignments .
3. On June 14, 2022, management terminated Complainant from his volunteer
appointment.
In its December 13, 2022 , final decision, the Agency dismissed the formal complaint pursuant to
29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Specifically, the Agency determined that
Complainant’s volunteer status did not grant him an “employee” status within the meaning of EEO complaint processing re gulatio ns and, therefore, he lacked standing to fil e a complaint . The
Agency determined that Complainant’s position could best be categorized as volunteer work
because he did not have an employment contract with the Agency and did not receive remuneration or employment benefits.
The instant appeal follow ed. Complainant did not submit a brief on appeal.
ANALYSIS AND FINDINGS
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 disability . 29 C.F.R. §§ 1614.103, .106(a).
The Commission’s fe deral 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 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.
Generally, only individuals who are an “employee or applicant for employment” have standing
to file an EEO complaint under the 29 C.F.R. Part 1614 regulations. See 29 C.F.R. § 1614.103.
The record reflects that , by his own admission, Complainant was a volunteer and worked without
compensation. Only in a narrow set of circumstances, usually where the volunteer is performing
services for an agency as part of an education program and receives remuneration , or where the
volunteer service l eads to regular employment, has the Commission held that a volunteer has
standing to file a n employment discrimination complaint. See Philips v. Department of Veterans
Affairs , EEOC Appeal No. 01893011 (Sept. 13, 1989) (citing Pollack v. Ric e University , 28 FEP
Cases 1273 (S.D. Texas 1982) (court found that because servi ce for remuneration as incidental to
scholastic program, plaintiff was a student and not an employee).
In his formal complaint filed on October 25, 2022, Complainant indicate d that he was not a
current or former employee and gave no indication that he was an applicant at that time. Rather,
Complainant states he was a member of the Federal Aviation Administration (FAA ) Safety
Team , and his position was as a “volunteer.”
Accordi ng to the FAA Manager and supporting documentation, Complainant did not receive any
monetary or insurance benefits for his work as a representative for the FAA Safety Team. Here ,
there is no evidence of a connection between volunteer work and subsequent regular
employment with the Agency. Therefore, we conclude the Agency properly dismissed the formal
complaint for failure to sta te a claim for lack of standing..
CONCLUSION
The Agency’s final decision dismissing the formal complaint is AFFIRMED.
STA TEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0920)
The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that:
1. The appellate decision involved a clearly erroneous inter pretation 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thir ty (30) calendar days of receipt of this decision. If the party requesting
reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration . A party shall have twenty
(20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportuni ty Management Directive for 29 C.F.R. Part 1614 (EEO M D-110), at Chap. 9 § VII.B
(Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx
Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equa l Employment Opportunity Commission, via regular mail addressed
to P.O. Box 77960, Washington, DC 20013, or by certified mail addresse d to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the
expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sect or EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request
and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which ca se no proof of
service is required.
Failure to file within the 30 -day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for
reconsideration. The Commission will consider requests for reconsidera tion filed after the
deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FI LE 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 natio nal 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole disc retion to grant or deny these types of requests.
Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
June 7, 2023
Date | [
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4,987 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A24255_r.txt | 01A24255_r.txt | TXT | text/plain | 9,036 | Lydia E. Rivas v. Department of the Army 01A24255 December 12, 2003 . Lydia E. Rivas, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency. | December 12, 2003 | Appeal Number: 01A24255
Legal Analysis:
The Commission determines that while the agency dismissed the claims
raised in the instant complaint on various grounds, this complaint
is more properly analyzed in terms of whether the instant complaint
addresses the same matters that were raised in an appeal with the MSPB.
A mixed case complaint is a complaint of employment discrimination filed
with a federal agency, related to or stemming from an action that can be
appealed to the MSPB. 29 C.F.R. § 1614.302(a)(1). An aggrieved person
may elect to initially file a mixed case complaint with an agency or may
file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. §
1201.151, but not both. 29 C.F.R. § 1614.302(b). Moreover, whichever
is filed first shall be considered an election to proceed in that forum.
See Dillon v. United States Postal Service, EEOC Appeal No. 01981358
(December 23, 1998)(citing Milewski v. United States Postal Service,
EEOC Request No. 05920429 (June 11, 1992)).
The record supports a finding that the MSPB appeal challenges
complainant's removal from the agency effective October 7, 2001.
The Commission determines that the matters in the instant complaint
were either raised in the MSPB appeal, or are inextricably intertwined
with the subject matter of her MSPB claim, which was the subject of the
NSA executed before the MSPB. Consequently, we find that complainant
elected to pursue the same matters alleged in the instant complaint
through the MSPB process.
Final Decision:
Accordingly, the agency's final decision dismissing the instant complaint is hereby AFFIRMED. | Lydia E. Rivas v. Department of the Army
01A24255
December 12, 2003
.
Lydia E. Rivas,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A24255
Agency No. AVBWFO01112B0550
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated July 1, 2002, dismissing her 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.
In her formal complaint, filed on March 5, 2002, complainant alleged
that she was discriminated against on the bases of national origin
(Hispanic) and in reprisal for prior EEO activity when:
(1) she was subjected to a pattern of abuse/retaliation;
(2) she was not informed that she was terminated from the Federal
government, effective October 7, 2001;
(3) her Merit Systems Protection Board (MSPB) Negotiated Settlement
Agreement (hereinafter referred to as NSA) was violated;
(4) unspecified sections of the United States Code were disregarded in
terminating her from Federal service;
(5) she was denied the right to representation during mediation on
January 31, 2002; and
(6) misinformation was released as it relates to her NSA and employment
qualifications.
In its July 1, 2002 final decision, the agency dismissed claim (1) on
the grounds that complainant did not raise them with an EEO Counselor,
and that the claim was not like or related to the matters for which
complainant underwent counseling. The agency dismissed claim (2) for
failure to state a claim and for failure to provide relevant/specific
information that clearly defines the issue. The agency dismissed claim
(3) on the grounds that it was raised in a negotiated grievance procedure.
The agency alternatively dismissed claim (3) for failure to state a claim
and for failure to provide relevant/specific information that clearly
defines the issue. The agency further dismissed claim (3) on the grounds
that it raises a matter that has not been brought to the attention of
an EEO Counselor and is not like or related to a matter that has been
brought to the attention of an EEO Counselor. The agency dismissed claims
(4),(5) and (6) for failure to state a claim. The agency alternatively
dismissed claims (4), (5) and (6) on the grounds that complainant did
not raise them with an EEO Counselor, and that the three claims were
not like or related to matters for which complainant underwent counseling.
The record reveals that complainant appealed her June 15, 1998 removal
from the agency to the Merit Systems Protection Board (MSPB). The record
further reveals that on October 16, 1998, the MSPB dismissed complainant's
appeal after complainant and the agency entered into the NSA dated
October 15, 1998, in resolution of MSPB Appeal No. DE-0752-08-356-I-1.
In the NSA, the agency agreed to remove and rescind complainant's LOW;
put complainant on the rolls in a leave without pay status within
ten days after the signing of the agreement; assist complainant in
preparing paperwork for disability retirement and/or OWCP claims;
submit fair and factual statements of any agency evidence with respect
to complainant's retirement and/or OWCP claims; that complainant would
resign upon exhaustion of her administrative remedies with regard to her
disability retirement and/or OWCP claims regardless of whether disability
and/or OWCP claims are successful; should complainant fail to submit her
resignation, her removal for AWOL would be reinstated without right of
appeal; the agency would immediately expunge her records with regard
to her AWOL removal; and a payment of $3,500.00 for attorney's fees.
The MSPB retained jurisdiction over enforcement of the NSA.
The Commission determines that while the agency dismissed the claims
raised in the instant complaint on various grounds, this complaint
is more properly analyzed in terms of whether the instant complaint
addresses the same matters that were raised in an appeal with the MSPB.
A mixed case complaint is a complaint of employment discrimination filed
with a federal agency, related to or stemming from an action that can be
appealed to the MSPB. 29 C.F.R. § 1614.302(a)(1). An aggrieved person
may elect to initially file a mixed case complaint with an agency or may
file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. §
1201.151, but not both. 29 C.F.R. § 1614.302(b). Moreover, whichever
is filed first shall be considered an election to proceed in that forum.
See Dillon v. United States Postal Service, EEOC Appeal No. 01981358
(December 23, 1998)(citing Milewski v. United States Postal Service,
EEOC Request No. 05920429 (June 11, 1992)).
The record supports a finding that the MSPB appeal challenges
complainant's removal from the agency effective October 7, 2001.
The Commission determines that the matters in the instant complaint
were either raised in the MSPB appeal, or are inextricably intertwined
with the subject matter of her MSPB claim, which was the subject of the
NSA executed before the MSPB. Consequently, we find that complainant
elected to pursue the same matters alleged in the instant complaint
through the MSPB process.
Accordingly, the agency's final decision dismissing the instant complaint
is hereby AFFIRMED.
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
December 12, 2003
__________________
Date
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4,988 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A23900_r.txt | 01A23900_r.txt | TXT | text/plain | 9,028 | Julie A. Ragsdale v. United States Postal Service 01A23900 June 16, 2003 . Julie A. Ragsdale, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. | June 16, 2003 | Appeal Number: 01A23900
Case Facts:
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 28, 2002, dismissing her 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of reprisal for prior EEO activity when:
On February 27, 2002, complainant learned that another employee was placed
as an Officer-In-Charge (OIC), a developmental assignment, in Honea Path.
The agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2)
for untimely EEO Counselor contact. The agency found that complainant
had requested a developmental assignment to the Simpsonville post office
as an Officer-In-Charge, which request was denied November 1, 2001.
Complainant initiated EEO counseling on February 27, 2002, which the
agency found, was beyond the 45-day limit for timely EEO contact.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
We find that complainant did not reasonably suspect discrimination when
her request for an OIC assignment was denied on November 1, 2001, until
she became aware in February 2002, that another employee was placed in
an OIC assignment. We find that complainant timely initiated the EEO
counseling process on February 27, 2002, and | Julie A. Ragsdale v. United States Postal Service
01A23900
June 16, 2003
.
Julie A. Ragsdale,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23900
Agency No. 4C-290-0041-02
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 28, 2002, dismissing her 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of reprisal for prior EEO activity when:
On February 27, 2002, complainant learned that another employee was placed
as an Officer-In-Charge (OIC), a developmental assignment, in Honea Path.
The agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2)
for untimely EEO Counselor contact. The agency found that complainant
had requested a developmental assignment to the Simpsonville post office
as an Officer-In-Charge, which request was denied November 1, 2001.
Complainant initiated EEO counseling on February 27, 2002, which the
agency found, was beyond the 45-day limit for timely EEO contact.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
We find that complainant did not reasonably suspect discrimination when
her request for an OIC assignment was denied on November 1, 2001, until
she became aware in February 2002, that another employee was placed in
an OIC assignment. We find that complainant timely initiated the EEO
counseling process on February 27, 2002, and accordingly, the agency's
dismissal of the complaint pursuant to 29 C.F.R. § 1614.107(a)(2)
is improper.
We therefore REVERSE the agency's final decision and REMAND the complaint
to the agency for further processing as directed herein.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 16, 2003
__________________
Date
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4,989 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A23896.txt | 01A23896.txt | TXT | text/plain | 9,664 | Bryan L. Hill v. Department of the Navy 01A23896 November 12, 2003 . Bryan L. Hill, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency. | November 12, 2003 | Appeal Number: 01A23896
Case Facts:
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant alleged that the agency had discriminated against him on
the bases of disability (perceived senility), age (D.O.B. 10/23/41),
and reprisal for prior EEO activity when:
(1) the Head and Deputy Head of the Information Management Department
(H1 and S1) developed, implemented and continued to reinforce a hostile
and retaliatory climate within the Corporate Operations Competency;
on September 7, 2000, S1 required him to provide a medical slip to
support a request for extended sick leave;
he was not provided the same training as his co-worker;
on September 6, 2000, a co-worker (C1) cursed and screamed at him when
he informed her he had filed a new EEO complaint;
on November 8, 2000, S1 suggested that he travel the week of November
13, 2000 while the National Associate of Public Administration (NAPA)
was on site conducting an investigation, thereby attempting to suppress
evidence in an attempt to insulate management;
S1 insisted on showing him office spaces in Building 03888 the week
of May 7, 2001, even after he indicated a possible relocation to that
building would not be acceptable;
he discovered upon his return to work on May 7, 2001 that S1 took no
steps to move his office away from C1 during his four-month absence;
on May 30, 2001, the Deputy, Corporate Operations Competency (D1)
allegedly questioned whether or not there was a facility in Ridgecrest
to do a second (radiation) EKG stress test and wondered why anyone
would call themselves Dr. Bill;
the Personnel Management Advisor (P1) was designated as point of contact
in the memorandum dated May 30, 2001 given to complainant by D1;
D1 allegedly created a hostile and retaliatory environment in
the Corporate Operations Competency and the Information Management
Department when he requested, by letters dated August 15 and 18, 2001,
additional medical documentation from complainant to support his request
for reasonable accommodation;
the agency's Deputy EEO Officer (DEEOO), allegedly allowed D1 to create
a hostile and retaliatory environment through her inaction;
in response to his request for an accommodation, D1's memorandum of
October 2, 2001 offered complainant a work assignment that is not
commensurate with the status of his current position and fails to
reasonably accommodate his medical restrictions.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEO Administrative Judge or
alternatively, to receive a final agency decision. Complainant requested
a final agency decision.
In his appeal, complainant generally argues that the EEO investigative
file was biased and incomplete.
Legal Analysis:
the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant alleged that the agency had discriminated against him on
the bases of disability (perceived senility), age (D.O.B. 10/23/41),
and reprisal for prior EEO activity when:
(1) the Head and Deputy Head of the Information Management Department
(H1 and S1) developed, implemented and continued to reinforce a hostile
and retaliatory climate within the Corporate Operations Competency;
on September 7, 2000, S1 required him to provide a medical slip to
support a request for extended sick leave;
he was not provided the same training as his co-worker;
on September 6, 2000, a co-worker (C1) cursed and screamed at him when
he informed her he had filed a new EEO complaint;
on November 8, 2000, S1 suggested that he travel the week of November
13, 2000 while the National Associate of Public Administration (NAPA)
was on site conducting an investigation, thereby attempting to suppress
evidence in an attempt to insulate management;
S1 insisted on showing him office spaces in Building 03888 the week
of May 7, 2001, even after he indicated a possible relocation to that
building would not be acceptable;
he discovered upon his return to work on May 7, 2001 that S1 took no
steps to move his office away from C1 during his four-month absence;
on May 30, 2001, the Deputy, Corporate Operations Competency (D1)
allegedly questioned whether or not there was a facility in Ridgecrest
to do a second (radiation) EKG stress test and wondered why anyone
would call themselves Dr. Bill;
the Personnel Management Advisor (P1) was designated as point of contact
in the memorandum dated May 30, 2001 given to complainant by D1;
D1 allegedly created a hostile and retaliatory environment in
the Corporate Operations Competency and the Information Management
Department when he requested, by letters dated August 15 and 18, 2001,
additional medical documentation from complainant to support his request
for reasonable accommodation;
the agency's Deputy EEO Officer (DEEOO), allegedly allowed D1 to create
a hostile and retaliatory environment through her inaction;
in response to his request for an accommodation, D1's memorandum of
October 2, 2001 offered complainant a work assignment that is not
commensurate with the status of his current position and fails to
reasonably accommodate his medical restrictions.
At the | Bryan L. Hill v. Department of the Navy
01A23896
November 12, 2003
.
Bryan L. Hill,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A23896
Agency No. 0160530002
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant alleged that the agency had discriminated against him on
the bases of disability (perceived senility), age (D.O.B. 10/23/41),
and reprisal for prior EEO activity when:
(1) the Head and Deputy Head of the Information Management Department
(H1 and S1) developed, implemented and continued to reinforce a hostile
and retaliatory climate within the Corporate Operations Competency;
on September 7, 2000, S1 required him to provide a medical slip to
support a request for extended sick leave;
he was not provided the same training as his co-worker;
on September 6, 2000, a co-worker (C1) cursed and screamed at him when
he informed her he had filed a new EEO complaint;
on November 8, 2000, S1 suggested that he travel the week of November
13, 2000 while the National Associate of Public Administration (NAPA)
was on site conducting an investigation, thereby attempting to suppress
evidence in an attempt to insulate management;
S1 insisted on showing him office spaces in Building 03888 the week
of May 7, 2001, even after he indicated a possible relocation to that
building would not be acceptable;
he discovered upon his return to work on May 7, 2001 that S1 took no
steps to move his office away from C1 during his four-month absence;
on May 30, 2001, the Deputy, Corporate Operations Competency (D1)
allegedly questioned whether or not there was a facility in Ridgecrest
to do a second (radiation) EKG stress test and wondered why anyone
would call themselves Dr. Bill;
the Personnel Management Advisor (P1) was designated as point of contact
in the memorandum dated May 30, 2001 given to complainant by D1;
D1 allegedly created a hostile and retaliatory environment in
the Corporate Operations Competency and the Information Management
Department when he requested, by letters dated August 15 and 18, 2001,
additional medical documentation from complainant to support his request
for reasonable accommodation;
the agency's Deputy EEO Officer (DEEOO), allegedly allowed D1 to create
a hostile and retaliatory environment through her inaction;
in response to his request for an accommodation, D1's memorandum of
October 2, 2001 offered complainant a work assignment that is not
commensurate with the status of his current position and fails to
reasonably accommodate his medical restrictions.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEO Administrative Judge or
alternatively, to receive a final agency decision. Complainant requested
a final agency decision.
In his appeal, complainant generally argues that the EEO investigative
file was biased and incomplete. Upon review of the record, we find the
agency developed an impartial and appropriate record. If a complainant
wishes to further develop the factual record, a hearing before an EEOC
Administrative Judge is the opportunity provided during which time the
record can be supplemented and witnesses can be examined. Complainant
elected not to have a hearing on his complaint. Accordingly, he cannot
now successfully argue that the record is incomplete and/or biased.
With respect to complainant's harassment and disparate treatment claims,
we find that the preponderance of the evidence does not establish
that complainant was subjected to a severe or pervasive hostile work
environment, or that the agency's actions were guided by discriminatory
or retaliatory animus.
With respect to complainant's reasonable accommodation claim, we find
that complainant is not entitled to a reasonable accommodation for a
perceived disability. See Holly v. Department of Health and Human
Services, EEOC Request No. 05880425 (October 12, 1988). However, to
the extent that complainant is also alleging that he was a qualified
individual with a disability (stress or depression), we find that the
agency reasonably accommodated him. The evidence in the record shows
that complainant provided a medical note requesting a low stress work
environment. Upon clarification, complainant's physician explained
that complainant needed to be in a work environment not directly and
personally hostile to him, in which he did not have to interact with
people who are likely to treat him in a hostile fashion or who have
in the past treated him in a hostile fashion. In addition, we note
that complainant's physician indicated that complainant's prognosis was
for full recovery in 6 to 12 months. In response to the request for a
reasonable accommodation, the agency temporarily assigned complainant
to the Task Force Web project. Such project removed complainant from
working with the individuals he claimed caused him stress.
While complainant argues that such project was clerical and not
commensurate with the status of his current position, the evidence
shows that such project did allow complainant to use his skills in
project management, technical and financial analysis. Moreover, the
evidence shows that complainant actually had performed similar work
in the past. Accordingly, we find that the temporary assignment which
removed complainant from working with the individuals he claimed caused
him stress amounted to an effective accommodation.
Accordingly, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to affirm the agency's
final decision because the preponderance of the evidence of record does
not establish that discrimination occurred.
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
November 12, 2003
__________________
Date
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4,990 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A23538_r.txt | 01A23538_r.txt | TXT | text/plain | 9,167 | Claretha Timmons v. Department of the Treasury 01A23538 July 31, 2003 . Claretha Timmons, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency. | July 31, 2003 | Appeal Number: 01A23538
Legal Analysis:
The Commission finds the agency's May 9, 2002 decision dismissing
complainant's complaint improper. Complainant alleges discrimination
on the bases of age and sex when: (1) for a two year period her manager
referred to the female employees in the office as the weaker link and
denied her request that the manager address her as Mrs. Timmons; and
(2) on December 18, 2001, she was not selected for a Seized Property
Specialist, GS-1801-11, position under Vacancy Announcement Number
SOFLA/01-017 SGG. The agency dismissed complainant's complaint
pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely filing of the
formal complaint.
The record indicates that complainant filed her complaint on March
27, 2002. The agency dismissed finding that complainant received the
Notice of Right to File (NORF) her formal complaint on March 6, 2002,
which informed complainant that she must file her formal complaint within
15 days of receipt of the NORF.
Complainant argues that the agency, via facsimile, sent a NORF, which
was illegible. Complainant called the EEO Counselor and indicated that
she could not read the document. The EEO Counselor, via facsimile,
sent another NORF on March 6, 2002. Complainant states that she was
instructed to backdate her signature on the NORF to February 20, 2002,
and return, which she did. The agency uses the date of March 6, 2002
as the date of receipt of the NORF when rendering its decision.
Complainant further argues that she was informed that other documents were
necessary, aside from the NORF, to file the complaint. Complainant argues
that when she told the EEO Counselor that she desired to personally pick
the other documents up from the office, the EEO Counselor informed her
that the documents were already in the mail. Complainant argues that
she received the additional documents on March 15, 2002.
Given complainant's detailed account of the conversations between herself
and the EEO Counselor, we find complainant's argument persuasive that
she did not receive a legible copy of the NORF until March 15, 2002.
Further, the agency has failed to prove that complainant received a
legible copy of the NORF more than 15 days before complainant's filing of
the formal complaint. Therefore, we find the agency's dismissal improper.
The agency's decision dismissing complainant's complaint is REVERSED and
we REMAND the matter to the agency for further processing in accordance
with this decision and applicable regulations.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409. | Claretha Timmons v. Department of the Treasury
01A23538
July 31, 2003
.
Claretha Timmons,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A23538
Agency No. 02-2180
DECISION
The Commission finds the agency's May 9, 2002 decision dismissing
complainant's complaint improper. Complainant alleges discrimination
on the bases of age and sex when: (1) for a two year period her manager
referred to the female employees in the office as the weaker link and
denied her request that the manager address her as Mrs. Timmons; and
(2) on December 18, 2001, she was not selected for a Seized Property
Specialist, GS-1801-11, position under Vacancy Announcement Number
SOFLA/01-017 SGG. The agency dismissed complainant's complaint
pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely filing of the
formal complaint.
The record indicates that complainant filed her complaint on March
27, 2002. The agency dismissed finding that complainant received the
Notice of Right to File (NORF) her formal complaint on March 6, 2002,
which informed complainant that she must file her formal complaint within
15 days of receipt of the NORF.
Complainant argues that the agency, via facsimile, sent a NORF, which
was illegible. Complainant called the EEO Counselor and indicated that
she could not read the document. The EEO Counselor, via facsimile,
sent another NORF on March 6, 2002. Complainant states that she was
instructed to backdate her signature on the NORF to February 20, 2002,
and return, which she did. The agency uses the date of March 6, 2002
as the date of receipt of the NORF when rendering its decision.
Complainant further argues that she was informed that other documents were
necessary, aside from the NORF, to file the complaint. Complainant argues
that when she told the EEO Counselor that she desired to personally pick
the other documents up from the office, the EEO Counselor informed her
that the documents were already in the mail. Complainant argues that
she received the additional documents on March 15, 2002.
Given complainant's detailed account of the conversations between herself
and the EEO Counselor, we find complainant's argument persuasive that
she did not receive a legible copy of the NORF until March 15, 2002.
Further, the agency has failed to prove that complainant received a
legible copy of the NORF more than 15 days before complainant's filing of
the formal complaint. Therefore, we find the agency's dismissal improper.
The agency's decision dismissing complainant's complaint is REVERSED and
we REMAND the matter to the agency for further processing in accordance
with this decision and applicable regulations.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 31, 2003
__________________
Date
| [
"29 C.F.R. § 1614.107(a)",
"29 C.F.R. § 1614.108",
"29 C.F.R. § 1614.503(a)",
"29 C.F.R. § 1614.503(g)",
"29 C.F.R. § 1614.409",
"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.604",
"29 C.F.R. § 1614.604(c)",
"42 U.S.C. § 2000e",
"29 U.S.C. §§ 791"
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