05A50539
06-26-2006
G. Roger Markley, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
G. Roger Markley,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Request No. 05A50539
Appeal No. 01A43049
Hearing No. 210-2004-0010X
Agency No. 033111T
DENIAL
Complainant timely requested reconsideration of the decision in G. Roger
Markley v. Department of the Treasury, EEOC Appeal No. 01A43049 (January
11, 2005). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b). For
the reasons set forth herein, the decision in EEOC Appeal No. 01A43049
remains the Commission's final decision with modification.
ISSUE PRESENTED
The issue presented herein is whether complainant has established that
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.
BACKGROUND
Complainant, an attorney in the Office of Chief Counsel of the Internal
Revenue Service in Chicago, Illinois, filed a formal EEO complaint on March
14, 2003. He claimed that the agency discriminated against him on the
bases of race (Caucasian) and sex (male) and in retaliation for prior EEO
activity when, in September 2001, two management officials, (RMO-1 and RMO-
2)[1] made allegedly inappropriate remarks outside his presence, but in the
presence of another management official (RMO-3),[2] who later testified as
a witness in complainant's prior nonselection complaint.[3] Specifically,
RMO-1 asked RMO-2 whether she knew complainant. When RMO-2 responded that
she did not, RMO-1 stated that she was working on an EEO case in which
complainant was representing the agency, she was finding him difficult to
work with, and she thought he was "crazy" or "nuts" because he was
complaining about not being selected for a position for which she did not
believe him to be qualified. RMO-3, who heard the aforesaid conversation
and considered complainant a friend, interjected, stating that she had
worked with complainant and had a high regard for his abilities. According
to RMO-3, RMO-2 responded that complainant had filed an EEO complaint
against her based on race and that she would "fix him" by hiring another
African-American female for the position.[4] When RMO-2 left the room, RMO-
3 told RMO-1 that she was shocked by RMO-2's comments, she was going to
notify the EEO investigator handling complainant's case, and RMO-1 should
do the same. RMO-1 allegedly stated that she would do no such thing, and
warned RMO-3 that she should do nothing, as RMO-2 was well liked and anyone
saying anything against her would suffer the consequences. Complainant did
not discover that the comments were made until 16 months later.
The agency accepted complainant's complainant and conducted an
investigation. At the conclusion of the investigation, complainant
received a copy of the investigative report and requested a hearing before
an EEOC Administrative Judge (AJ). On December 31, 2003, the AJ issued an
acknowledgement and order and advised the parties to brief the issue of
whether complainant was an aggrieved individual. After reviewing both
parties' briefs, the AJ issued a decision on February 13, 2004, finding
that complainant failed to state a claim. The AJ noted that complainant
raised the alleged interference by RMO-2 during the May 2003 hearing for
the prior nonselection complaint. He deduced that, in trying to raise said
claim in the form of a reprisal claim, complainant was attempting to
collaterally attack the unfavorable ruling of the presiding AJ in the prior
nonselection complaint. On March 14, 2004, the agency fully implemented
the AJ's decision.
Complainant appealed the agency's decision to the Commission, and in EEOC
Appeal No. 01A43049, we affirmed the agency's dismissal of the complaint.
Thereafter, complainant filed the present request to reconsider (RTR).
In his RTR, complainant asserts, among other things, that the agency,
through RMO-2, attempted to interfere with his rights and the integrity of
the "EEO system" to have both a fair and impartial determination at the
hearing in May 2003, regarding his prior nonselection complaint. He
maintains that the Commission's decision in EEOC Appeal No. 01A43049, which
adopted the AJ's decision, is incorrect in both its factual and legal
conclusions and analysis, and it will have an effect upon the agency by
potentially allowing management officials to attempt to thwart the pursuit
of an EEO complaint. He further alleges that, if the Commission upholds
its prior decision, managers will be allowed to use any method to prevent
witnesses from providing information or from testifying about events that
place the agency in a questionable light. Finally, complainant explains
that Commission precedent does not require that an adverse action be an
"ultimate employment action," but rather the Commission looks at whether
the agency action might have a "chilling effect" on future EEO activity.
ANALYSIS AND FINDINGS
As noted above, the agency dismissed complainant's complaint for failure to
state a claim. 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, disability or reprisal. 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). Moreover, under the Commission's broad view of
reprisal, any adverse treatment that is based upon a retaliatory motive and
is reasonably likely to deter the charging party or others from engaging in
protected activity, states a claim. See Lindsey v. United States Postal
Service, EEOC Request No. 05980410 (November. 4, 1999).
In the present case, while the record reflects that RMO-1 and RMO-2 may
have made inappropriate stray remarks, we do not find that their statements
rendered complainant aggrieved or that they had a chilling effect on
complainant's use of the EEO process. See Diaz, supra. First, the record
does not establish that the statements made by RMO-1 and RMO-2 were
followed by any concrete agency action against complainant. See Backo v.
United States Postal Service, EEOC Request No. 05960227 (June 10, 1996);
Henry v. United States Postal Service, EEOC Request No. 05940695 (February
9, 1995). In this regard, we note that, to the extent complainant asserts
that RMO-2 retaliated against him by not selecting him for a specified
position, complainant had the opportunity to present evidence regarding her
remarks during the hearing for his prior nonselection complaint.[5] See
EEOC Appeal No. 01A34260 (January 14, 2005). There, the AJ emphasized that
the statements were made an entire year after the nonselection by only one
of four selection board members. Moreover, we concur with the AJ's finding
in the current complaint that complaint is attempting to collaterally
attack the unfavorable ruling of the presiding AJ in the prior nonselection
complaint. Second, in light of the facts here, where the remark was not
made in the presence of complainant, we cannot conclude that RMO-2 intended
to dissuade complainant from using the EEO process. We note in this regard
that RMO-2's statement, which was not stated in complainant's presence, was
unlikely to have a chilling effect upon his future EEO activity, as RMO-2
would not reasonably expect that complainant would become aware of her
comment. Finally, we note that RMO-2 had no supervisory authority over
complainant, and complainant did not discover that the comments were made
until 16 months later. We therefore determine that the agency properly
dismissed complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim.
In sum, we find that complainant has failed to prove that the decision in
EEOC Appeal No. 01A43049 involved a clearly erroneous interpretation of
material fact or law, or that the decision will have a substantial impact
on the policies, practices, or operations of the agency.
CONCLUSION
After reconsidering the previous decision and the entire record, and for
the reasons set forth above, the Commission finds that the request fails to
meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 01A43049
remains the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. 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.
"Agency" or "department" means the national organization, and not the local
office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_______6-26-06___________
Date
-----------------------
[1] RMO-1 was then the Service's Director of EEO and Diversity, Criminal
Investigation. RMO-2 represented the Office of Chief Counsel, Criminal Tax
function.
[2] RMO-3 was the Director of Field Operations, Central Area, Criminal
Investigation.
[3] In a complaint filed on December 9, 2000, complainant claimed that the
agency had discriminated against him on the bases of race (White), sex
(male), age, and reprisal for prior EEO activity when, on September 19,
2000, he was not selected for the position of GS-905-15 Area Counsel
(Criminal Tax) under Vacancy Announcement No. 00-52.
[4] RMO-2 denied having made such a comment.
[5] Complainant filed an appeal with the Commission regarding his prior
nonselection complaint. EEOC Appeal No. 01A34260 (January 14, 2005). In
that decision, the Commission found that the presiding AJ reasonably
concluded that RMO-2's statements, even if evincing an intent to retaliate
against complainant, and to the extent it was made a year after the
selection decision, was not probative of her intent at the time of the
selection.