01985395
10-29-1999
Eric A. Shrader, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Eric A. Shrader v. Department of Agriculture
01985395
October 29, 1999
Eric A. Shrader, )
Appellant, )
)
v. ) Appeal No. 01985395
) Agency No. 950731
Daniel R. Glickman, ) Hearing No. 100-96-7957X
Secretary, )
Department of Agriculture, )
Agency. )
_________________________________)
DECISION
On March 20, 1998, the appellant, by and through his attorney, timely
filed an appeal from the final decision of the agency concerning his
complaint of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1>
The appeal is accepted pursuant to 29 C.F.R. �1614.401(a).
ISSUE PRESENTED
Whether the agency (1) properly defined the appellant's complaint, and (2)
whether it properly dismissed the complaint for failure to state a claim.
BACKGROUND
The appellant filed an EEO complaint alleging that he was subjected to
discrimination by the agency on the basis of his race (white) and reprisal
(prior EEO activity) when: a) it issued a Within-Grade Increase Record,
form AD-685P, dated September 14, 1994 which indicated he was performing
at a "Not Acceptable Level of Competence," and b) retained the form in
his Official Personnel Folder (OPF). The agency defined the complaint
as involving issue 2, but conducted an investigation which collected
evidence on both issues.
The appellant affirmed that he first learned of the form AD-685P on June
26, 1995, when he looked in his OPF for another reason. The form was not
acted upon, and the appellant received a within-grade increase effective
October 2, 1994 for performing at an acceptable level of competence.
Thereafter, in April 1995, the appellant was issued a performance
appraisal with a rating of outstanding for the period of July 1, 1993
through September 30, 1994.
The appellant contends that in late June or early July 1995, he contacted
an identified Employee Relations Specialist about the form AD-685P,
and the Specialist replied that the only way it would be removed was
via an EEO settlement. According to the appellant, the Specialist
appeared to take delight in telling him the form would stay in the OPF.
The Specialist affirmed that he did not believe he talked to the appellant
about the form, and thought he removed it from the appellant's OPF one day
after he learned of it. A witness for the appellant, who affirmed that
he overheard a conversation between the appellant and the Specialist
on a speaker telephone, somewhat corroborated the appellant's account.
The form was removed from the appellant's OPF between July 28, 1995 to
August 7, 1995.
Following the investigation of the appellant's complaint, the appellant
requested a hearing. Thereafter, an AJ notified the parties that she
intended to make a summary judgement ruling on the grounds that the
appellant did not state a justiciable claim. In opposition to the notice,
the appellant argued that the mere existence of the negative form AD-685P
in his OPF was sufficient injury to aggrieve him. He further argued that
he sustained mental anguish and was entitled to compensatory damages. In
support of this, the appellant submitted affidavits by himself and others
describing the mental anguish and attributing it to his discovery of
the negative form AD-685P and its retention in his OPF.
Thereafter, the AJ issued a recommended decision finding that the
appellant's complaint failed to state a claim. The AJ reasoned that
there was no evidence that any actual term, condition or privilege of
employment was affected by the form's presence in the appellant's OPF.
The AJ noted that while the appellant asserted that he applied for several
jobs and therefore management officials may have reviewed the incorrect
form, this assertion was speculative because there was no evidence any
official saw the form or utilized it in an employment decision. The AJ
also found that while the appellant argued the agency had not destroyed
all copies of the form, he presented no evidence that it actually
existed, and hence failed to show an injury in fact. With regard to
the appellant's claim for compensatory damages, the AJ, citing Henry
v. United States Postal Service, EEOC Request No. 05940533 (September 1,
1994), found that absent a personal loss or harm with respect to a term,
condition or privilege of employment, a claim for compensatory damages
alone will not be processed.
On appeal, the appellant reiterates his previous arguments.
ANALYSIS AND FINDINGS
As an initial matter, we find that the appellant alleged in his complaint
that he was subjected to discrimination by the agency on the basis of
his race and reprisal when it issued the negative form in question as
well as when it retained the form in his OPF. Accordingly, both issues
are part of the appellant's EEO claim.
An agency shall accept a complaint from any aggrieved employee or
applicant for employment who believes that he has been discriminated
against by that agency because of race, color, religion, sex,
national origin, age, disabling condition or reprisal (EEO activity).
29 C.F.R. �1614.103 and .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).
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency shall
dismiss a complaint that fails to state a claim under �1614.103.
The negative form AD-658P was in effect a proposed action to deny
the appellant a within grade increase that was never implemented.
EEOC Regulation 29 C.F.R. �1614.107(e) provides, in part, that the
agency shall dismiss a complaint that alleges that a proposal to take a
personnel action, or other preliminary step to taking a personnel action,
is discriminatory. The section by section analysis that accompanied
the issuance of 29 C.F.R. Part 1614 at section 107(e) states in part:
We intend this section 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.
57 Fed. Reg. 12643 (April 10, 1992).
The language regarding the official file suggests that the placement and
retention in an OPF of documentation regarding a preliminary step to a
negative action states a claim. The negative form was in the appellant's
OPF for over a total of nine months, and the appellant contends that when
he brought the negative form to the attention of the Employee Relations
Specialist, the agency delayed at least a month before removing the form.
We find that the issuance of the negative form, along with its retention
in the appellant's OPF for over nine months, by itself states a claim.
This constituted a tangible employment action that adversely affected
the appellant's personnel records for over nine months. Further,
the appellant's claim is not moot because he alleged he sustained
compensatory damages as a result of the discrimination. Accordingly,
the agency's decision to dismiss the appellant's complaint is reversed.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it is
the decision of the Commission to redefine the appellant's complaint as
stated in order below and to REVERSE the agency's decision to dismiss
the appellant's complaint for failure to state a claim. On remand,
the agency shall follow the order below. This is not a decision on the
merits of the appellant's complaint.
ORDER
The agency is ORDERED to redefine the appellant's complaint to allege
that he was subjected to discrimination by the agency on the basis of
his race (white) and reprisal (prior EEO activity) when: (1) it issued
a Within-Grade Increase Record, Form AD-685P, dated September 14, 1994
which stated he was performing at a "Not Acceptable Level of Competence,"
and (2) retained the form in his Official Personnel Folder (OPF).
Thereafter, it shall request that the Commission appoint an AJ to conduct
a hearing on the appellant's complaint pursuant to 29 C.F.R. �1614.109.
The agency shall complete the above actions within 60 calendar days of
date it receives this decision.
A copy of the agency's letters redefining the appellant's complaint
and requesting the appointment of an AJ must be sent to the Compliance
Officer as referenced below, and to the appellant.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. ��1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Oct. 29, 1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1The agency received the "summary judgement" recommended decision on
January 21, 1998, and issued a final decision adopting it on June 22,
1998. As the agency did not issue a final decision adopting, rejecting
or modifying the recommended decision within 60 calendar days of
receiving it, the recommended decision became the agency's final decision
on March 23, 1998. 29 C.F.R. �1614.109(g). Since the appellant's appeal
was pending when the recommended decision became final, the appeal is
timely (see 29 C.F.R. �1614.402).