James O'Malley, Appellant,v.Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity CommissionOct 28, 1999
01985099 (E.E.O.C. Oct. 28, 1999)

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