01985099
10-28-1999
James O'Malley, Appellant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.
James O'Malley v. National Aeronautics and Space Administration
01985099
October 28, 1999
James O'Malley, )
Appellant, )
)
v. ) Appeal No. 01985099
) Agency No. NCN-98-KSC-A017
Daniel S. Goldin, )
Administrator, )
National Aeronautics )
and Space Administration, )
Agency. )
______________________________)
DECISION
On June 12, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated May 11, 1998, received by
appellant on May 18, 1998, pertaining to his complaint of unlawful
employment discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.
The Commission accepts appellant's appeal in accordance with EEOC Order
No. 960, as amended.
The agency framed appellant's allegations of discrimination as follows:
1. Because of your age (50), you were discriminated against in the
following manner:
(a) you have been performing duties at the GS-14 grade level for a
period of at least nine months prior to December 20, 1997, without being
promoted;
(b) you have been denied high profile assignments which prevent your
advancement to the GS-14 grade level; and
(c) you were non-selected for promotions in favor of younger persons
with less experience.
2. In retaliation for filing a discrimination complaint, information
concerning your cause of action was disclosed to inappropriate persons,
which you believe, may negatively impact your future employment
prospects.
The agency accepted allegation 1(a) for investigation and requested
additional information from appellant to determine whether to accept
allegations 1(b) and 1(c). The agency dismissed allegation 2 pursuant
to 29 C.F.R. �1614.107(b) and (e). Specifically, the agency noted that
allegation 2 is not like or related to a matter that has been brought to
the attention of a Counselor. Further, the agency noted that allegation
2 involves a proposed action or a future harm that appellant believes
may occur.
On appeal, appellant contends that he had specific discussions with
the Counselor regarding retaliation, including discussions about the
impact on appellant's ability for promotion within the agency. Further,
appellant contends that upon receiving the EEO Counselor's Report,
it is clear that his supervisor and the Deputy Chief to the Facilities
Division would have given negative references about appellant to any
prospective employers. Appellant indicates that prior to his EEO
activity the identified officials favorably viewed his performance;
however, in their statements to the EEO Counselor, these same officials
identified various problems with appellant's performance indicating that
these problems prevented him from being promoted to the GS-14 level.
According to appellant, after pursuing his EEO complaint, outside
prospective employers rejected him for employment after purportedly
contacting the agency for references. Appellant claims that based on
the statements in the EEO Counselor's Report, these prospective employers
must have received derogatory references from the identified officials.
In response, the agency notes that the Counselor's Report did not refer
to any discussions about retaliation. The agency submits a signed
affidavit of the EEO Counselor, which indicates that "no mention was
made of retaliation for filing an EEO complaint." Further, the agency
withdraws its dismissal based on 29 C.F.R. �1614.107(e) because appellant
identifies on appeal three job opportunities which he was purportedly
denied.
The EEO Counselor's Report indicates that appellant discussed his
belief that his professional advancement was being hindered by certain
identified agency officials. Specifically, appellant stated that he
was being passed over for promotion in favor of younger less experienced
employees, he was not given meaningful, high profile tasks, and his high
level work was not being recognized.
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 record indicates that appellant sought counseling regarding a denial
of career advancement. Specifically, appellant identified several agency
officials, who were purportedly failing to give him proper credit for
work performed, as well as failing to assign him high profile assignments.
Allegation 2 involves these same agency officials and their disclosure of
information to negatively impact appellant's career prospects. Clearly,
allegation 2 is like or related to the matters which appellant raised
with the EEO Counselor; both involve the denial of career advancement.
Therefore, the agency's dismissal of allegation 2 was improper and is
hereby REVERSED. Allegation 2 is hereby REMANDED to the agency for
further processing in accordance with the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation 2 in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation 2 within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (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:
October 28, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations