0120142990
01-15-2015
Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 0120142990
Agency No. HHS-CDC-0103-2014
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated July 14, 2014, dismissing a formal 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
During the period at issue, Complainant worked as a Contract Specialist at the Agency's Office of the Chief Operating Officer, Procurement and Grants Office, in Atlanta, Georgia.
On May 23, 2014, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination in reprisal for prior protected activity (filing a union grievance wherein Complainant claimed he had alleged discrimination) when:
1. on January 13, 2014, he received an email notification from the Atlanta Human Resources Center that he was not selected for the position of Contract Specialist, GS-1102-09, Vacancy Announcement Number HHS-CDC-DH-13-888304; and
2. on February 6, 2014, he received an overall 3.0 Achieved Expected Results End of Year Performance Rating.
On July 14, 2014, the Agency issued a final decision dismissing the formal complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency found that Complainant failed to establish standing as an "aggrieved" employee. The Agency stated that Complainant failed to allege retaliation for prior EEO activity, claiming only that he was retaliated against because of a grievance.
The instant appeal followed. Complainant argues that the Agency erred in dismissing his complaint for failure to state a claim. Complainant states that he "did allege retaliation because of his previous union grievance that was filed in 2011, however, the subject of the grievance was centered on Title VII of the Civil Rights Act of 1964 and Title 29 CFR � 1614(b). [Complainant] alleged reprisal based because he engaged in protected employment activity as defined within the relevant statutes."
ANALYSIS AND FINDINGS
In the instant case, we find that the Agency improperly dismissed the instant formal complaint for failure to state a claim. A fair reading of the record reflects that Complainant has alleged reprisal for filing a grievance. However, Complainant asserts that he alleged race discrimination in the grievance, and the Agency has not provided any evidence, such as a copy of the grievance, in contradiction to this assertion. In Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission has been clear that "the agency has the burden of providing evidence and/or proof to support its final decisions." We therefore determine that Complainant has, in the specific circumstances of this case, raised a covered basis. Moreover, the matters that are the substance of the formal complaint address a personal loss or harm regarding a term, condition, or privilege of Complainant's employment. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The Agency's final decision dismissing Complainant's formal complaint for the reason stated herein is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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
January 15, 2015
__________________
Date
2
0120142990
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120142990