0120172731
12-05-2017
Bryan T,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bryan T,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120172731
Agency No. ATL-16-0674-SSA
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 6, 2017, 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 former Service Representative at the Agency's facility in Dothan, Alabama.
On July 29, 2016, Complainant contacted the EEO Counselor alleging discrimination. On August 19, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), color (Black), age (40), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964
the Age Discrimination in Employment Act of 1967 when:
1. On June 7, 2016, Complainant was not selected for the position of Health Administrator.
2. On April 10, 2013, he was not promoted.
3. On April 10, 2013, he was not given an award.
4. On April 10, 2015, he was not promoted.
5. On April 10, 2015, he was not given an award.
6. Agency has failed to comply with the terms of the Order of March 4, 2015, in the matter of OFO docket No. 0720130027 (March 4, 2015), EEOC Compliance No. 0620150408.
The Agency dismissed claims (2) - (5) pursuant to 29 C.F.R. �1614.107(a)(2) for failure to contact the EEO Counselor regarding these claims with the 45 day time limit. The Agency noted that the alleged events occurred in April 2013 and April 2015 while Complainant contacted the EEO Counselor in July 2016, well beyond the 45 day time limit. The Agency dismissed claim (6) pursuant to 29 C.F.R. �1614.107(a)(1) for failure to state a claim. The Agency noted that Complainant sought to obtain compliance on the Commission's previous decision. As such, the Agency found that Complainant's claim (6) was not actionable. The Agency accepted claim (1) for investigation.
The Agency conducted the investigation solely on claim (1). Following the investigation, Complainant initially requested a hearing but then subsequently requested an immediate final decision. The Agency issued its decision restating its dismissal of claims (2) - (6). In addition, the Agency dismissed claim (1) pursuant to 29 C.F.R. �1614.107(a)(1) for failure to state a claim. The Agency determined that, in essence, Complainant was launching a collateral attack on the EEOC's Order awarding Complainant compensatory damages, back pay, and the opportunity to complete the rest of his probationary period as a service representative. As such, the Agency dismissed the complaint as a whole.
This appeal followed. On appeal, Complainant argued that the Agency failed to comply with the Commission's previous orders in EEOC Appeal No. 0720130027. As a result, Complainant claimed that his personnel file was not appropriately updated with all the correct changes following the Commission's decision. Therefore, he was not competitive when he applied for the position listed in claim (1). As such, Complainant argued Agency officials provided him with a "negative reference" by not correcting his SF-50 employment file and did so based on his protected bases. Complainant also argued that the other claims were part of his claim of harassment when the Agency failed to comply with the Commission's orders in EEOC Appeal No. 0720130027.
ANALYSIS AND FINDINGS
Spin off - Claim (6)
We note that the Agency dismissed claim (6) pursuant to 29 C.F.R. �1614.107(a)(1) for failure to state a claim. However, we find that Complainant is alleging that the Agency has failed to comply with the Commission's order in EEOC Appeal No. 0720130027 and EEOC Compliance No. 0620150408.2 As such, we find that the Agency should have dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(8). We note that 29 C.F.R. � 1614.107(a)(8) provides that the Agency shall dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint. These types of complaints are commonly referred to as "spin off" complaints, and they do not state an independent claim. Complainant should have raised his concerns with the Agency's compliance with the Commission's Compliance Officer assigned to EEOC Compliance No. 0620150408, or filed a petition for enforcement with the Commission pursuant to 29 C.F.R. � 1614.503(a). Therefore, we affirm the Agency's dismissal albeit on alternative grounds.
Untimeliness - Claims (2) - (5)
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO 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.
Upon review, we find that the Agency's dismissal was appropriate. Complainant made contact with the EEO Counselor in July 2016. The events alleged in claims (2) - (5) occurred in April 2013 and April 2015. Complainant provided no reason for the delay. As such, we affirm the Agency's dismissal of claims (2) - (5).
On appeal, Complainant has asserted that claims (2) - (6) constitute a claim of harassment. However, the sum of his arguments involves his assertion that the Agency failed to comply with the Commission's orders in EEOC Appeal No. 0720130027. As noted above, such a claim constitutes a spin-off complaint which is dismissed, pursuant to 29 C.F.R. � 1614.107(a)(8), as an independent claim, and should have been pursued through the regulatory compliance mechanisms.
Failure to State a Claim - Claim (1)
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, disabling condition, genetic information, or reprisal. 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).
However, a former employee may state a viable retaliation claim for protected activity that arose from his or her employment with an agency even if the disputed agency action occurred after the termination of the employment relationship. In Robinson v. Shell Oil Co., 519 U.S. 337 (1997), a case involving a claim of retaliation when a former employer gave an employee a negative job reference, the Supreme Court clarified that the term "employee" as used in the anti-retaliation provision of Title VII, includes former employees. See also Doyle v. Dep't of Justice, EEOC Request No. 0520070207 (Oct.12, 2007) (Complainant stated a viable claim of retaliation when, as a former employee who had engaged in protected EEO activity, he was not selected for a contract position with the Agency after his retirement); Machlin v. US Postal Serv., EEOC Appeal No. 0120070788 (March 29, 2007) (Complainant stated a viable claim of retaliation when, as a former employee who had engaged in protected EEO activity, he was not selected for a contract position with the Agency); Bimes v. Dep't of Defense, EEOC Appeal No. 01990373 (April 13, 1999) (allegation of retaliation involving agency's refusal to provide a former employee with post-employment letters of reference states a viable claim).
In the instant case, Complainant alleged discrimination when Agency officials failed to make the changes to his personnel file when he applied for a position with another Agency. As such, he claimed that management provided Complainant with a negative reference in retaliation for his prior EEO compliant. Therefore, we find that Complainant has presented a cognizable claim.
We note that the Agency's investigation did not adequately address this claim. A review of the investigation shows that the investigator asked the Agency official questions regarding the position for which Complainant applied and the selection process. However, such an inquiry failed to address Complainant's claim of unlawful retaliation for failure to update his personnel file resulting in a negative reference. Therefore, we not only reverse the Agency's final decision dismissing this claim, but also remand the matter for further investigation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the dismissal of claims (2) - (6). However, we REVERSE claim (1) and remand the claim in accordance with the ORDER below.
ORDER (E1016)
The Agency is ordered to process the remanded claim, namely 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 claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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 Employment Opportunity Commission. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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
December 5, 2017
__________________
Date
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 We note that the compliance matter was closed on March 24, 2016, finding that compliance had been obtained.
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