01a52245
05-19-2005
Brian C. Robinson, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.
Brian C. Robinson v. Department of Health and Human Services
01A52245
May 19, 2005
.
Brian C. Robinson,
Complainant,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A52245
Agency No. CDC-NCHSTP-004-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 27, 2004, 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
(African-American), sex (male), and disability when:
on July 30, 2004, complainant received a minimally successful rating
in three critical elements on his progress review for the period of
January 1, 2004 through June 30, 2004;
complainant expressed dissatisfaction with the handling of his complaint
by the assigned EEO Counselor; and
complainant alleged discriminatory practices at the Philadelphia Sexually
Transmitted Disease (STD) Control Program.
On August 4, 2004, the agency issued complainant a termination letter.
The EEO Counselor's report shows that complainant raised his termination
claim during EEO Counseling. Although complainant addressed this claim
during his informal counseling, he stated in his formal complaint that,
�The decision to file this complaint has been made not in reaction to
being wrongfully terminated.� Given that complainant chose not to file
a formal complaint on his termination, the agency decided not address
this claim in its decision and neither will the Commission.
Claim 1
EEOC Regulation 29 C.F.R. �1614.107(a)(5) provides, in relevant part,
that an 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 Commission intends this section to
require the dismissal of complaints that allege that �preliminary
steps that do not, without further action, affect the person, for
example progress reviews and improvement plans that are not part of any
official file on the employee.� Jackson v. Central Intelligence Agency,
EEOC Request No. 05931177 (June 23, 1994). The record indicates that
complainant received a minimally successful rating in three critical
elements on his progress review for the period of January 1, 2004 through
June 30, 2004. The agency determined that complainant's mid-year progress
review is not part of any official file and dismissed claim (1) on the
grounds that complainant's mid-year progress review was a proposal to
take an action that did not render complainant aggrieved. We conclude
that there is nothing in the record to show that any action was taken
as a result of the progress review, nor has complainant asserted that
the mid-year performance review was part of a pattern of harassment. We
agree with the agency that the mid-year progress review is a preliminary
step to taking a personnel action and that claim (1) does not allege
a harm to a term, condition or privilege of complainant's employment.
Thus, it is properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(5).
Claim 2
Claim (2) concerns purported improper and biased handling of complainant's
EEO complaint by the EEO Counselor. Complainant alleged that his EEO
Counselor failed in her ability to remain impartial throughout the
investigation process. The agency dismissed complainant's complaint
for dissatisfaction of a previously filed complaint pursuant to 29
C.F.R. � 1614.107(a)(8). EEOC Management Directive, Ch. 5 � IV(d)
(November 11, 1999) provides that if a complainant is dissatisfied
with the processing of his pending complaint, whether or not it alleges
prohibited discrimination as a basis for dissatisfaction, he should be
referred to the agency official responsible for the quality of complaint
processing. Furthermore, if the complainant has raised his concerns
with the appropriate agency official and nothing was done to resolve the
concerns, the complainant may present those concerns to the EEOC at the
following stages of processing:
1. Where the complainant has requested a hearing, to the EEOC
Administrative Judge when the complaint is under the jurisdiction
of the Administrative Judge; or
2. Where the complainant has not requested a hearing, to the EEOC Office
of Federal Operations (OFO) on appeal.
Upon review, we find that complainant has not presented sufficient
evidence to support a finding that his complaint was improperly processed.
Therefore, we dismiss claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1).
Claim 3
EEOC Regulation 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). Complainant alleged discriminatory actions
at the Philadelphia Sexually Transmitted Disease (STD) Control Program.
The agency concluded that complainant did not provide any information
explaining what actions were discriminatory and dismissed claim (3)
pursuant to 29 C.F.R. � 1614.107(a)(1). However, the record indicates
that complainant provided several examples of alleged discriminatory
actions in his August 26, 2004 memorandum. For example, complainant
explained that the agency reprimanded him for his lateness and for
unacceptable field record closures, and that the agency never afforded
him with the opportunity to conduct lectures and trainings. Upon review,
we find that complainant intended to allege harassment based on race,
sex, and disability but has failed to show that the agency's actions were
severe and pervasive enough to state an actionable claim of harassment.
We find that claim (3) is properly dismissed for failure to state a claim.
Accordingly, the agency's decision to dismiss claims (1) through (3)
is 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:
May 19, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations