0120091427
06-17-2009
James D. McCabe, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
James D. McCabe,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120091427
Agency No. ARUSMA08OCT04341
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 18, 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.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed, in part, pursuant to 29 C.F.R. � 1614.107(a).
During the relevant period, complainant was a Utility Systems Repairer
at an agency academy. On October 21, 2008, complainant initiated contact
with an EEO Counselor alleging that the agency discriminated against him
based on reprisal for prior EEO activity when complainant's supervisor:
(a) did not issue complainant his annual appraisal for August 2007 - July
2008, which was due in September 2008, and (b) failed to issue complainant
an award for completion of fifteen years of government service on April
8, 2008. In December 2008, complainant filed a formal complaint alleging
the same.
In its final decision, the agency dismissed claims (a) and (b) pursuant
to 29 C.F.R. � 1614.107(a) for failure to state a claim and untimely EEO
Counselor contact, respectively. Specifically, the agency stated, for
claim (a), that complainant spent all or a significant amount of his work
time as a union representative so, according to Federal regulations,
he could not be given a performance appraisal and, for claim (b),
that complainant allowed almost six months to pass from when he was
aware that he had not received his award before initiating EEO contact.
The agency noted that, in the meantime, the agency has prepared his
award and scheduled a formal presentation. The instant appeal from
complainant followed.
On appeal, complainant acknowledged that he can not be "physically rated"
because of his 100% official time position and stated that he could
receive a "modal rating" of "Fully Successful Level 1" as others have
received in the past. He stated that a rating is important because the
agency is contemplating a reduction-in-force (RIF) and ratings affect
employee RIF rights.
With regard to the agency's dismissal of claim (a) for failure to state
a claim, the anti-retaliation provisions of the employment discrimination
statutes seek to prevent an employer from interfering with an employee's
efforts to secure or advance enforcement of the statutes' basic
guarantees, and are not limited to actions affecting employment terms
and conditions. Burlington Northern & Santa Fe Railroad. Co. v. White,
548 U. S. ____, 126 S. Ct. 2405 (2006). To state a viable claim of
retaliation, complainant must allege that: 1) s/he was subjected to an
action which a reasonable employee would have found materially adverse,
and 2) the action could dissuade a reasonable employee from making or
supporting a charge of discrimination. Id. While trivial harms would not
satisfy the initial prong of this inquiry, the significance of the act of
alleged retaliation will often depend upon the particular circumstances.
See also EEOC Compliance Manual, No. 915.003 (May 20, 1998) (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). We conclude that complainant's allegations in
this matter are sufficient to state a viable claim of reprisal.
Moreover, we find that, in its dismissal decision, the agency has
addressed the merits of complainant's complaint without a proper
investigation as required by the regulations. The agency's proffered
reason in its dismissal for its failure to issue the performance
appraisal-that complainant served as a full-time as a union
representative-goes to the merits of complainant's complaint, and is
irrelevant to the procedural issue of whether he has stated a justiciable
claim under Title VII. See Osborne v. Department of the Treasury, EEOC
Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service,
EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States
Postal Service, EEOC Request No. 05910642 (August 15, 1991).
Next, with regard to claim (b), EEOC Regulation 29 C.F.R. � 1614.105(a)(1)
requires that complaints of discrimination be brought to the attention
of the Equal Employment Opportunity Counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the
case of a personnel action, within forty-five (45) days of the effective
date of the action. As to (b), the record discloses that complainant
initiated contact with an EEO Counselor on October 21, 2008, which is
outside the forty-five (45) day limitation period required by 29 C.F.R. ��
1614.105(a)(1) & .107(a)(2). Further, we find that complainant failed
to present persuasive arguments to warrant waiver of the regulatory
time-frame.
Based on the above, we REVERSE the final decision as to claim (a) and
REMAND the matter to the agency for further processing consistent with
this decision and the Order below. Regarding claim (b), we AFFIRM the
agency's final decision dismissing the matter.
ORDER (E0408)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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
June 17, 2009
__________________
Date
2
0120091427
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091427