Gregory L. Morrison, Appellant,v.William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.

Equal Employment Opportunity CommissionNov 5, 1999
01994970 (E.E.O.C. Nov. 5, 1999)

01994970

11-05-1999

Gregory L. Morrison, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.


Gregory L. Morrison v. Department of Defense

01994970

November 5, 1999

Gregory L. Morrison, )

Appellant, )

)

v. )

) Appeal No. 01994970

William S. Cohen, ) Agency No. 99EASLL010

Secretary, )

Department of Defense, )

(Defense Commissary Agency), )

Agency. )

______________________________)

DECISION

On June 2, 1999, appellant filed a timely appeal with this Commission

from a final agency decision (FAD), dated May 17, 1999, dismissing the

basis of reprisal and six allegations from his complaint. The Commission

accepts the appeal in accordance with EEOC Order No. 960, as amended.

Appellant contacted the EEO office regarding allegations of discrimination

based on sex and reprisal. Informal efforts to resolve appellant's

concerns were unsuccessful. Accordingly, on February 18, 1999, appellant

filed a formal complaint alleging harassment.

The agency defined the allegations as follows<1>:

On October 3, 1998, appellant was issued a Performance Improvement Plan

(PIP);

On November 20, 1998, appellant was issued an extension of PIP;

Appellant was forced to work in a hostile work environment when:

he was accused of not providing correct answers in response to an

Inspection Report, memo dated October 5, 1998;

appellant received a memo dated October 15, 1998 concerning not meeting

suspenses timely;

Store Manager asked appellant if the Commissary Officer seemed out of

control; and,

Commissary Officer (CSO) used profanity with customers on the sales

floor and towards management on or about January 3, 1999;

The CSO verbally, physically, and personally threatened the complainant

on several occasions from 1996 to present;

The CSO threatened the appellant with professional harm if he refused

to inflict harm on certain employees from 1996 to present;

The CSO used his position to abuse female employees and family members of

store personnel in the form of sexual harassment from 1996 to present;

The CSO used his position as deciding officer in personnel actions that

appellant proposed for actions against specific employees from 1996 to

present;

The CSO refused to allow appellant consideration for positions of upward

mobility from 1996 to present; and,,

The CSO encouraged employees to disregard all organizational structure

to have employees at all levels call him reporting what they believe, or

like, in spite intermediate levels of supervision from 1996 to present.

The agency issued a FAD dismissing reprisal as a basis and allegations

4 - 9. Specifically, the FAD indicated that appellant's whistleblower

activity was not a protected EEO activity, and therefore he had improperly

claimed reprisal. The agency stated that allegations 4 - 9 had not been

brought to the attention of the counselor, and were not like and related

to a matter that had been raised with the counselor.

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, 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;

�1614.106(a).

EEOC Regulation 29 C.F.R. �1614.101(b) provides that no person shall be

subject to retaliation for opposing any practice made unlawful by Title

VII, the ADEA, the Equal Pay Act (EPA), or the Rehabilitation Act, or

for participating in any stage of administrative or judicial proceedings

under those statutes. In order to establish discrimination based on

retaliation, an individual must be able to show that he or she engaged

in prior EEO activity based on 29 C.F.R. �1614.101(b).

In the instant case, it is unclear from the record whether appellant

had previously participated in the EEO process. The Counselor's Report

refers to reprisal based on appellant's whistle blower activity, which the

Commission has previously held is outside the purview of the EEO process.

See Giannu v. HUD, EEOC Request No. 05880911 (February 13, 1989); Folley

v. Department of the Navy, EEOC Request No. 05860403 (July 2, 1987).

However, on appeal appellant contends that he has engaged in protected

activities. Appellant argues that he was cited as the "wronging party"

in another's EEO case, and has "opposed discriminatory animus at many

stages." Therefore, the agency's decision to dismiss the basis of

reprisal is VACATED and REMANDED for a supplemental investigation as to

whether appellant engaged in prior EEO activity.

EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that

an agency shall dismiss a complaint or portion thereof which raises a

matter that has not been brought to the attention of an EEO Counselor,

and is not like or related to a matter on which the complainant has

received counseling. A later allegation or complaint is "like or related"

to the original complaint if the later allegation or complaint adds

to or clarifies the original complaint and could have reasonably been

expected to grow out of the original complaint during the investigation.

See Calhoun v. United States Postal Service, EEOC Request No. 05891068

(March 8, 1990); Webber v. Department of Health and Human Services,

EEOC Appeal No. 01900902 (February 28, 1990).

The Commission finds that the agency properly dismissed allegations 4 - 9.

The dismissed allegations address verbal and physical threats, sexual

harassment of female employees, abuse of position, upward mobility,

and disregard for the organizational structure. These issues were not

raised with the counselor and are not like or related to the allegations

that were addressed during counseling. Therefore, the agency's decision

to dismiss allegations 4 - 9 is AFFIRMED.

Accordingly, the agency's decision dismissing allegations 4 - 9 is

AFFIRMED. The agency's decision dismissing the basis of reprisal is

VACATED and REMANDED for further processing in accordance with this

decision and the proper regulations.

ORDER

On remand, the agency shall conduct a supplemental investigation on

the issue of whether appellant previously engaged in EEO activity,

including the manner in which appellant experienced reprisal. If the

agency finds that appellant had prior EEO activity, the agency shall

continue the processing of appellant's reprisal basis in accordance

with 29 C.F.R. �1614.108. If no prior EEO activity is found then

the agency shall issue a final agency decision dismissing the basis,

with the appropriate appeal rights. The supplemental investigation and

decision either accepting or dismissing appellant's reprisal claim shall

be completed within sixty (60) calendar days of the date this decision

becomes final.

A copy of the agency's investigation and letter either accepting or

dismissing appellant's reprisal basis must be sent to the Compliance

Officer as referenced below.

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 (M1099)

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. All requests and arguments must 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 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).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision 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 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.

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. 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 (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:

11/05/1999

____________________________

DATE Carlton M. Hadden, Acting Director

1For the purpose of clarity, the allegations have been renumbered.