Christopher Schmiedhauser, Complainant,v.Alexis M. Herman, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionOct 20, 2000
01a02202 (E.E.O.C. Oct. 20, 2000)

01a02202

10-20-2000

Christopher Schmiedhauser, Complainant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.


Christopher Schmiedhauser v. Department of Labor

01A02202

October 20, 2000

.

Christopher Schmiedhauser,

Complainant,

v.

Alexis M. Herman,

Secretary,

Department of Labor,

Agency.

Appeal No. 01A02202

Agency No. 9-02-146

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated December 27, 1999, dismissing his complaint of unlawful

employment discrimination.<1> In his complaint, complainant alleged

that he was subjected to discrimination on the bases of reprisal (prior

protected activity) and sexual orientation when:

Complainant was subjected to a continuing pattern of harassment which

started on approximately November 20, 1998, and culminated in his

termination on April 16, 1999.

The agency dismissed complainant's complaint pursuant to the regulation

set forth at 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.

With regard to the claim of discrimination based on reprisal, the

agency claimed that complainant failed to show that he engaged in prior

protected activity. The agency noted that complainant contacted an EEO

Counselor twice in March 1999, but stated that since he did not file a

complaint at that time, his actions did not constitute opposition to a

discriminatory employment practice or participation in the EEO complaint

process. In addition, the agency dismissed complainant's complaint

pursuant to the regulation set forth at 29 C.F.R. � 1614.107(a)(7), for

failure to cooperate. Specifically, the agency noted that complainant

refused to engage in telephone conversations and requested that all

interaction with him be conducted in writing. In addition, the agency

noted that the Civil Rights Center (CRC) sought clarification of the

reprisal basis of complainant's complaint and received a response by

complainant directing CRC to return to previously submitted materials.

Finally, the agency noted that sexual orientation is not a protected

basis under the EEO regulations.

On appeal complainant states that as early as February 2, 1999, he told

his supervisor that he would �document events of importance concerning

EEO matters and act independently if necessary.� Complainant claims

that his supervisor stated that she would discuss this with the Director.

According to complainant, a few days after this statement, the Director

was at a bulletin board joking with an employee about the EEO system.

Complainant states that on March 2, 1999, he phoned the Washington EEO

Office in front of his supervisor to inquire about the procedures for

proceeding with an EEO action. Complainant also states that he met

with the Civil Rights Officer, on March 17, 1999, and on April 8, 1999.

With regard to the agency's finding that complainant failed to cooperate,

complainant notes that he was told by the Civil Rights Officer that he

had the right to conduct all EEO business in writing. In addition,

complainant claims that he submitted sufficient documentation of

his participation in the EEO process. Also on appeal, complainant

reiterates that he has stated a claim of discrimination based on sexual

orientation.

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 finds that the agency properly dismissed the basis of

reprisal discrimination with respect to the incidents between November

20, 1998 and February 1, 1999. Complainant indicated that the basis

for his reprisal claim was his statement on February 2, 1999, that

he would �document events of importance concerning EEO matters and

act independently if necessary� and his contacts with the Civil Rights

Officer and the EEO in Washington in March 1999. Since the incidents in

November 1998 through February 1, 1999, occurred prior to complainant's

participation in any EEO activity, we find that the basis of reprisal

with regard to these incidents lacks the requisite prior EEO activity

necessary for stating a reprisal claim.

With regard to the incidents cited between February 2, 1999 and April

16, 1999, we find that the agency improperly dismissed this portion of

the complaint. With regard to the incidents occurring after February 2,

1999, we find that complainant has shown that he engaged in protected

activity prior to the filing of his complaint on these incidents.

With regard to the claim of discrimination based on sexual orientation,

we find that the agency properly dismissed this basis of complainant's

complaint. We note that Title VII's prohibition of discrimination

based on sex does not include sexual preference or orientation. Johnson

v. United States Postal Service, EEOC Request No. 05910858 (December 19,

1991); Morrison v. Department of the Navy, EEOC Request No. 05930964

(June 16, 1994). Thus, complainant's claim of discrimination based on

sexual orientation is not covered by EEO Regulations.

The regulation set forth at 29 C.F.R. � 1614.107(a)(7) provides for the

dismissal of a complaint where the agency has provided the complainant

with a written request to provide relevant information or otherwise

proceed with the complaint, and the complainant has failed to respond to

the request within 15 days of its receipt or the 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

that, instead of dismissing for failure to cooperate, the complaint may

be adjudicated if sufficient information for that purpose is available.

Under the circumstances in this case, we find that the agency's dismissal

was improper. The record contains a letter dated September 13, 1999,

in which the agency requested that complainant explain what previous

EEO activities he participated in and indicated that failure to do so

within 15 days would result in dismissal of his complaint. According

to the agency, complainant failed to furnish his response within the

requisite time frame, and therefore, his complaint should be dismissed

for failure to cooperate. We note, however, that the agency failed to

show when complainant received the September 13, 1999 letter. Moreover,

we note that complainant's complaint and the eighteen-page attachment,

addressed the incidents of alleged discrimination, with reference

to the responsible agency officials by name, the bases on which he

alleged discrimination, the dates of his contact with the EEO office,

and the corrective action sought. Therefore, under the circumstances,

we find the agency's dismissal of complainant's complaint for failure

to cooperate was improper.

Accordingly, the agency's decision to dismiss the incidents of

alleged discrimination between November 20, 1998 and February 1, 1999,

was proper and is AFFIRMED. The agency's dismissal of the basis of

sexual orientation discrimination is AFFIRMED. The agency's decision to

dismiss the incidents of alleged discrimination based on reprisal between

February 2, 1999, and April 16, 1999, was improper and is REVERSED and

these incidents are REMANDED to the agency to be processed pursuant to

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 (K0900)

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)(Supp. V 1993). 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 (M0900)

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 (T0900)

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 (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 20, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.