0120101039
06-22-2010
Edward Brody, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Eric K. Shinseki, Secretary, Department of Veterans Affairs, Complainant. Appeal No. 0120101039 Complainant No. 200400202009103442
Edward Brody,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Complainant.
Appeal No. 0120101039
Complainant No. 200400202009103442
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 9, 2009, 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. Upon review, the Commission finds that
Complainant's complaint was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(1) and (5) for failure to state a claim and for raising a
claim regarding a proposal to take a personnel action.
BACKGROUND
In a complaint dated September 24, 2009, Complainant alleged that he was
subjected to discrimination on the bases of race (white), sex (male),
disability, and age when: 1) on or about April 23, 2009, management failed
to provide him with proper guidance and developmental opportunities, which
significantly impeded his career development; 2) on or about April 27,
2009, he received an unsatisfactory progress review for [the] period of
October 1, 2008 through April 23, 2009; 3) on or about May 8, 2009, he
was placed on a Performance Improvement Plan (PIP); 4) on or about June
1, 2009, he was placed on a revised PIP; and 5) on unspecified dates,
management failed to promote him to the GS-13 grade level.
In its final decision, the Agency determined that claims 1 and 5 either
fail to cite specific dates or detail actions of discriminatory misdeeds
attributable to Agency personnel, and are too vague for acceptance and
too general to compel investigation of Complainant's complaint. With
respect to claims 2, 3 and 4, the Agency determined that Complainant's
progress review and resulting PIPs are only preliminary steps to taking a
personnel action and may not, by themselves, constitute an adverse action
to render an employee aggrieved. Further, no action was taken against
Complainant and, in fact, he ultimately received a "Fully Successful"
performance rating.
ANALYSIS AND FINDINGS
The Commission finds that the Agency properly dismissed claims 1 and 5
because Complainant failed to identify a specific action attributable to
Agency management and/or a specific harm that he allegedly sustained.
EEOC Regulation 29 C.F.R. � 1614.106(c) provides that an EEO complaint
must be sufficiently precise to describe the actions or practices that
form the basis of the complaint. Complainant has failed to identify a
promotional and/or developmental opportunity that he was denied and so
has failed to allege facts that could establish that he has suffered
a present harm or loss with respect to a term, condition or privilege
of his employment for which there is a remedy if discrimination were
established. See Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Regarding claims 2, 3 and 4, the Commission finds that Complainant's
progress review and resulting PIP's are only preliminary steps to
taking a personnel action. 29 C.F.R. � 1614.107(a)(5) provides for
the dismissal of a complaint that "alleges that a proposal to take a
personnel action, or other preliminary step to taking a personnel action,
is discriminatory." In the Section by Section Analysis that accompanied
the 1992 issuance of EEOC Regulations 29 C.F.R. � 1614, the Commission
explained that:
We intend [Section 1614.107(e)] to require dismissal of complaints that
allege discrimination in any preliminary steps that do not, without
further action, affect the person; for example, progress reviews or
improvement periods that are not a part of any official file on the
employee.
See 57 Fed. Reg. 12643 (April 10, 1992); Jackson v. Central Intelligence
Agency, EEOC Request No. 05931177 (June 23, 1994); Blumner v. Equal
Employment Opportunity Commission, EEOC Appeal No. 01952640 (January
19, 1996). When determining whether a record is in "any official file
on the employee," the concern is "with official records which could
be available to personnel other than the personnel responsible for the
challenged act." Jackson, supra (citation omitted). Complainant does
not assert that his progress review and PIPs are included in his official
personnel record, and the record does not show that Complainant's progress
review and PIPs are included in his official personnel record. Therefore,
the dismissal of claims 2, 3 and 4 were proper.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
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 (S0408)
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. 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. "Complainant" 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 22, 2010
__________________
Date
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0120101039
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101039