0120150457
04-21-2015
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120150457
Agency No. 146298003267
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated October 14, 2014, 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 Human Resources Assistant at the Agency's Navy Personnel Command facility in Millington, Tennessee.
On September 15, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity when:
1. On or about July 2012, Complainant was denied an upgrade of his GS - 7 Position Description (PD) for Placement Coordinator by the Director (D), who told Complainant that the results of Complainant's desk audit/classification review showed that the position did not warrant an upgrade, and that the PD would be rewritten to reflect the results of the classification review.
2. On or about December 12, 2012, D gave Complainant a PD that did not accurately describe Complainant's duties and responsibilities.
3. On or about March 12, 2013, Complainant's FOIA request for a copy of the desk audit was denied.
4. On September 23, 2013, Complainant's supervisor (S) gave Complainant a PD that lacked details.
5. On October 11, 2013, S issued Complainant a written counseling for conducting personal matters during working hours.
6. On July 31, 2014, S gave Complainant verbal counseling concerning Complainant's visit to Human Resources.
The Agency dismissed the claims for various reasons. Specifically, the Agency found that the claims should be dismissed for failure to state a claim. The Agency found that Complainant failed to establish that he had engaged in protected EEO activity and hence failed to state a claim of reprisal. In addition, the Agency found that Complainant failed to show he incurred a harm from the Agency's alleged actions, and that some of the alleged actions were too remote in time from any claimed protected EEO activity to establish a nexus between the protected activity and the Agency's actions. In addition, the Agency found that Complainant failed to establish a claim of harassment because the actions complained of were insufficiently severe to constitute harassment. Finally, with regards to the FOIA request, the Agency found that Complainant's claim constituted a collateral attack on the FOIA process and hence failed to state a claim.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any employee or applicant for employment who believes 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). While 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 (see Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994)), we note that Complainant's sole basis of discrimination is retaliation. The Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998). As such, the Dismissal's focus on whether or not Complainant incurred a harm due to the Agency's alleged actions fails to address the correct standard.
Following a review of the record, we find that Complainant states valid claims of ongoing reprisal when he alleges that he was denied a position upgrade (allegation 1), when he was issued written counseling (allegation 5), when his position description did not accurately describe his duties (allegations 2 and 4), and when he was issued verbal counseling (allegation 6). We find that such allegations, especially considered together, are the types of actions that are reasonably likely to deter Complainant or others from engaging in protected EEO activity.
We note that the Agency found that Complainant had not shown he engaged in protected EEO activity and/or that some of the claims were too remote in time from any claimed EEO activity to establish a nexus between that activity and the Agency's actions. The Agency's arguments in this regard address the merits of Complainant's complaints without a proper investigation as required by the regulations. Whether or not Complainant engaged in EEO activity, and/or whether such activity was close enough in time to the Agency's alleged actions so as to establish a nexus are irrelevant to the procedural issue of whether he has stated a justiciable claim of reprisal. 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).
With regards to allegation 3, we note that 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 raise his challenges to the denial of his FOIA request is with the US Department of Justice and not this Commission. To the extent, however, that the Dismissal found that Complainant's other claims constituted a collateral attack, we disagree. Allegations concerning the denials of an upgrade, the composition of a position description and the issuance of counselings, both verbal and written, are not allegations made against another proceeding but are standard allegations by an employee against his employer, the type of allegations that are the mainstay of this Commission's enforcement work.
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 allegation 3 (concerning FOIA request) and REVERSE the dismissal of the remaining allegations and REMAND the complaint for further processing in according 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
April 21, 2015
__________________
Date
2
0120150457
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120150457