0120091598
06-10-2010
Donald E. Gryder, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Donald E. Gryder,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120091598
Agency No. 200922449FRA02
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated February 9, 2009, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. and
Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of reprisal for prior protected EEO activity
under Title VII and the Rehabilitation Act when:
1. on October 1, 2008, at a court proceeding, the agency maintained
its objections to complainant's reinstatement in opposition to a jury
verdict;
2. complainant believed that his equal protection rights guaranteed by
the 14th Amendment to the U.S. Constitution have been violated; and
3. the agency failed to properly process his EEO counseling for the
instant complaint within the required thirty-day timeframe.
In its final decision, the agency dismissed claims (1) and (2) pursuant
to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The agency
also dismissed claim (3) pursuant to 29 C.F.R. � 1614.107(a)(8) for
raising a spin-off complaint.
Complainant appealed asserting that the agency improperly dismissed his
complaint. Complainant asserted without specific information that agency
officials continue to retaliate against him for his prior EEO activity.
Complainant also indicated that he did not agree to an extension of
the EEO Counseling process and that management officials conspired with
the agency's EEO office to improperly process his complaint within the
required time limits. The agency requested that the Commission affirm
its final decision dismissing the complaint at hand.
Dismissal of Claims (1) and (2)
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).
As to claim (2), complainant indicated that the agency denied his equal
protection rights guaranteed under the 14th Amendment. Upon review,
we note that such a claim is beyond the Commission's jurisdiction.
As such, we affirm the agency's dismissal of claim (2).
In claim (1), complainant alleged that, during a court proceeding,
the agency maintained its objections to complainant's reinstatement in
opposition to a jury verdict. The Commission finds that complainant
cannot raise such a claim based upon an absolute litigation privilege.
An absolute privilege is provided for statements made as part of a
judicial or administrative proceeding. See McBride v. Department of
Justice, EEOC Appeal No. 07A00010 (January 16, 2001); see also Cruey
v. Gannett Co. 64 Cal. App. 4th 356, 368 (Cal. Ct. App. 1984). Based upon
this absolute privilege, we find that complainant cannot raise such a
claim based on the legal challenges made to a jury verdict at a court
proceeding.
Dismissal of Claim (3)
In claim (3), complainant alleged that agency officials were improperly
involved with the processing of the instant complaint resulting in delays
by the EEO Office. According to the Commission's Management Directive,
a complainant dissatisfied with the processing of his complaint must
bring his allegation regarding the processing of his complaint to the
appropriate agency officials. See EEO Management Directive 110, (MD-110)
p. 5-25 (November 9, 1999); see also 29 C.F.R. � 1614. 107(a)( 8).
Therefore it was appropriate for the agency to dismiss this claim. See
Carter v. Office of Personnel Management, EEOC Appeal No. 0120071166
(June 18, 2007) (Commission affirmed dismissal of claim expressing
dissatisfaction with the processing of current EEO complaint). However,
the agency official responsible for the quality of complaints processing
must also add a detailed record of the complainant's concerns and any
actions the agency took to resolve the concerns, to the complaint file
maintained on the instant complaint. EEO MD-110, at 5-26. If no action was
taken, the file must contain an explanation of the agency's reason(s) for
not taking any action. Id. In light of the facts presented in the instant
case and our concern for the integrity of the agency's EEO process, we
order the agency to provide complainant with a report of any actions it
takes to resolve his concerns regarding the processing of his complaint,
or an explanation of its reason for not taking action, in accordance
with the order below. See Losinger v. Department of Agriculture, EEOC
Request No. 0520070870 (September 26, 2007).
CONCLUSION
Therefore, the Commission affirms the dismissal of the complaint at hand.
However, the Commission remands the claim of improper processing of the
instant complaint for further investigation.
ORDER
The agency is ordered to investigate the issue of whether agency
officials were improperly involved with the processing of the instant
complaint resulting in delays by the EEO Office. In the investigative
record, the agency shall include documentation reflecting how long the
EEO Office processed the instant complaint and the justification for
delay. The agency must also provide complainant an opportunity to place
into the record any evidence supporting his claim that agency officials
improperly engaged with the EEO Office creating a delay in the processing
of the instant matter. Within sixty (60) days from the date this decision
becomes final, the agency shall provide complainant with a copy of the
investigation into this matter, and shall issue a decision as to whether
or not agency officials were improperly involved with the processing of
the instant matter. The agency's decision shall provide appeal rights
to the Commission.
A copy of the agency's decision with notice of rights must be sent to
the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M1208)
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 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 (T0408)
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 (Z1008)
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
June 10, 2010
__________________
Date
2
0120091598
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091598