01A14404
11-21-2002
Charles L. Burgett, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Charles L. Burgett v. Department of Treasury
01A14404; 01A20245; 01A24251
November 21, 2002
.
Charles L. Burgett,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal Nos. 01A14404
01A20245
01A24251
Agency Nos. 01-4213
01-4324
02-4215
DECISION
Complainant filed timely appeals with this Commission from three final
agency decisions, dated June 13, 2001, September 28, 2001, and July 24,
2002, respectively dismissing the captioned complaints. The Commission
consolidates and accepts these appeals. See 29 C.F.R. � 1614.405 and
29 C.F.R. � 1614.606.
In complaint #01-4213 (herein referred to as complaint 1), complainant
claimed that he was the victim of unlawful employment discrimination on
the bases of race, sex, and in reprisal for engaging in prior protected
EEO activity when he received an unfair �departure rating� on March 4,
2001, for the period of November 1, 2000 to December 17, 2000. In its
June 13, 2001 decision, the agency dismissed the complaint for failure
to state a claim. The agency found that complainant was not aggrieved
because the agency had purged the rating and all supporting documentation
from his personnel file.
On appeal (#01A14404), complainant argues that he was harmed by the rating
because the agency issued it for the purpose of harassing him, averring
that it was part of an on-going pattern of harassment, and referencing
prior EEO complaints he filed in which he also alleged harassment.
In complaint #01-4324 (herein referred to as complaint 2), complainant
again claimed discrimination on the bases of race, sex, and in reprisal
for engaging in prior protected EEO activity. Therein, complainant
averred that when he inspected his personnel file on July 17, 2001,
he discovered that the agency failed to completely purge all of the
supporting documentation related to the above referenced �departure
rating.� Additionally, complainant claimed that the agency then refused
to remove this remaining documentation. In its September 28, 2001
decision, the agency dismissed the complaint for failure to state a claim.
The agency found that complainant suffered no adverse action due to
the retained documentation, and that any harm was merely speculative.
Alternatively, the agency also dismissed the complaint on the grounds
that it constitutes a �collateral attack� on its June 13, 2001 decision
on complaint 1.
On appeal, (#01A20245), complainant avers that he is aggrieved because the
agency agreed to remove all documentation supporting the departure rating,
but then failed to completely do so, subsequently refusing to remove the
documentation at issue. Moreover, complainant additionally argues that
the agency engaged in this conduct for the purpose of harassing him, again
averring that this action was part of an on-going pattern of harassment.
In complaint #02-4215 (herein referred to as complaint 3), complainant
once again claimed discrimination on the bases of race, sex, and
in reprisal for engaging in prior protected EEO activity. Therein,
complainant averred that when he inspected his personnel file on June 25,
2002, he found the departure rating which had previously been removed.
In its July 24, 2002 decision, in pertinent part, the agency dismissed
the complaint for failure to state a claim, finding that it constituted
a collateral attack on its dismissals of complaints 1 and 2.
On appeal (#01A24251), complainant argues that the agency has twice
attested to the removal of the departure rating and/or supporting
documentation, yet he has now twice discovered these purportedly
purged materials in his personnel file. Complainant maintains that
the agency's �collateral attack� arguments are absurd, and that the
actions of management, removing and replacing the departure rating and
supporting documentation, constitute evidence of an on-going pattern
of discrimination.
Complaint 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 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).
Upon review of the consolidated record before us on appeal, we find
that the agency failed to submit sufficient evidence to support its
decision on complaint 1, i.e., that it purged complainant's personnel
file of the departure rating and supporting documentation at issue.
We find that the agency offers no evidence to refute complainant's
statements regarding his subsequent discoveries of both an item of
supporting documentation, and then the offending departure rating itself.
In fact, in its decision on complaint 2, the agency admits retention
of the documentation identified by complainant, and otherwise does not
challenge the veracity of his statements. Moreover, the EEO Counselor's
report associated with complaint 3 reflects that the EEO Counselor noted
that she personally removed the rating and placed it in the complaint
file; however, under the circumstances of this case, where the record
shows that a named agency personnel official deemed the reappearance of
the departure rating a �mystery,� we do not find that the removal by
the EEO Counselor constitutes adequate assurance that the materials at
issue will not once again appear in complainant's personnel file.
Therefore, by openly retaining a certain item of supporting documentation,
and apparently removing and replacing the departure rating itself, we
find that the agency, in effect, continued to memorialize its negative
assessment of complainant's performance for the time period at issue.
Thus, because complainant alleges that this assessment is improper and
discriminatory, we find that its retention renders complainant aggrieved,
and that the agency improperly dismissed complaint 1.
Accordingly, for the reasons set forth above, we REVERSE the agency's
dismissal of complaint 1, and we REMAND the complaint back to the agency
for processing as set forth in the ORDER below.
Complaints 2 and 3
In viewing the consolidated record, we find that complainant claims
harassment in complaints 2 and 3, as described above, as well as in
complaint 1, because complainant claims that the departure rating was
unjustified and issued for the sole purpose of harassing him. However,
the agency's decisions uniformly fail to address complainant's harassment
claim. Therefore, we find that the agency improperly framed the claims
in complaints 2 and 3, and then improperly dismissed them for failure
to state a claim.
Furthermore, in addressing complainant's harassment claims as set
forth in the consolidated record, we first note that Commission records
confirm that complainant filed additional complaints claiming harassment
by many of the same agency officials, such that the instant claims are
not of an isolated nature. Moreover, we find that complainant expressly
claims that the agency's open retention and subsequent refusal to purge
a certain item of supporting documentation, as well as the clandestine
replacement of the departure rating in complainant's personnel file,
were specifically undertaken for the purpose of continued harassment,
and that he felt intimidated by these actions. Additionally, we find that
complainant clearly was upset and concerned about the possible effects of
having the information at issue in his record, resulting in his rather
frequent checks of his personnel file. Therefore, based on our view
of the totality of this evidence, viewed in the light most favorable to
complainant, we find that complainant has set forth an actionable claim
of harassment. See Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997).
Accordingly, for the reasons set forth above, we find that the agency
improperly dismissed complaints 2 and 3, and we REVERSE both of these
determinations, and REMAND complainant's harassment claim back to the
agency for processing as set forth in the ORDER below.
ORDER
The agency is ordered to process the remanded claims (complainant's claim
regarding the improper issuance of the November/December 2000 departure
rating, and his harassment claim as framed by the Commission in this
decision), 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 21, 2002
__________________
Date