Ezra Teitelbaum, Complainant,v.JoAnn M. Johnson, Chairman, National Credit Union Administration, Agency.

Equal Employment Opportunity CommissionMay 28, 2009
0120091022 (E.E.O.C. May. 28, 2009)

0120091022

05-28-2009

Ezra Teitelbaum, Complainant, v. JoAnn M. Johnson, Chairman, National Credit Union Administration, Agency.


Ezra Teitelbaum,

Complainant,

v.

JoAnn M. Johnson,

Chairman,

National Credit Union Administration,

Agency.

Appeal No. 0120091022

Agency No. 08-04

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated November 20, 2008, 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

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. We AFFIRM in part and REVERSE and REMAND in

part the agency's final decision.

During the relevant period, complainant was employed as a Principal

Credit Union Examiner with the agency. In a formal EEO complaint dated

June 4, 2008, complainant alleged that the agency subject him to hostile

work environment harassment on the bases of religion (Orthodox Jewish),

age (over 40), and reprisal for prior protected EEO activity when his

recently-appointed supervisor (S1) (1) on July 20, 2007, told him that

she was unsure if she could approve his request for leave between August

27 and September 14, 2007 due to a planned group meeting on September 10,

(2) took two months to approve complainant's September 10, 2007 request

for leave to travel to Israel on December 14, which caused him to cancel

his vacation plans, (3) denied complainant's November 21, 2007 request

to use leave in December 2008, (4) in January 2008, informed complainant

that she was unhappy with the direction he was taking with a particular

credit union, (5) in February 2008, engaged complainant in a heated

discussion about a regulatory matter and told complainant that no one

would believe his allegation that she discriminates against him because

of his religion because she supervises another employee who is Jewish,

and (6) on February 25, 2008, for the 2007 period, gave complainant a

performance rating 55 points lower than he received the previous year.1

The agency dismissed complainant's claim pursuant to 29 C.F.R. ��

1614.107(a)(4) & (1), raised the matter in a negotiated grievance

process that allows allegations of discrimination and failure to state

a claim. The agency stated that complainant grieved his performance

appraisal in a March 2008 union grievance and buttressed his claim with

detailed recollections of meetings and conversations between him and S1.

The agency stated that complainant detailed many of the same incidents in

his narrative statement for his formal EEO complaint filed in June 2008.

The agency noted that the grievance preceded the complaint. Further, the

agency stated that the actions complainant alleged fail to state a claim

of hostile work environment. The instant appeal followed. On appeal,

complainant stated that his grievance pertains to his performance

appraisal and his formal EEO complaint addresses various discriminatory

actions. Complainant stated that the two are completely separate.

The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that

an agency may dismiss a complaint where the complainant has raised

the matter in a negotiated grievance procedure that permits claims of

discrimination. EEOC Regulation 29 C.F.R. � 1614.301(a) states that

a complainant must elect to proceed under either Part 1614 or the

negotiated grievance process, but not both. We note that dismissal

pursuant to 29 C.F.R. � 1614.107(a)(4) can not be based on a similar

matter but rather the same matter and the record does not indicate that

here. We find that complainant's grievance involves his 2007 performance

appraisal and his formal complaint involves harassing incidents between

a particular time-frame. With that said, we find that complainant has

presented a cognizable claim of unlawful harassment and retaliation.

He alleged actions that are sufficiently severe or pervasive to alter the

conditions of complainant's employment and of a type reasonably likely

to deter complainant or others from engaging in protected activity.

Based on the above, we AFFIRM the agency's dismissal of the 2007

performance appraisal pursuant to 29 C.F.R. � 1614.107(a)(4), and REVERSE

the agency's dismissal of the harassment claim and REMAND the matter to

the agency for further processing consistent with this decision and the

Order below.

ORDER (E0408)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. 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 (K1208)

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 (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

May 28, 2009

__________________

Date

1 The record shows that on March 14, 2008, complainant filed a grievance

under the negotiated grievance process in place regarding the 2007

performance rating he received in February 2008.

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2

0120091022

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120091022