0120062889
10-26-2006
Jeffrey Neuin, Complainant, v. Maria Cino, Acting Secretary, Department of Transportation, Agency.
Jeffrey Neuin,
Complainant,
v.
Maria Cino,
Acting Secretary,
Department of Transportation,
Agency.
Appeal No. 01200628891
Agency No. DOT-2006-20228-FAA-03
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated March 27, 2006, dismissing his formal EEO 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 pursuant to 29 C.F.R. � 1614.107(a) (1) for failure
to state a claim.
The record reflects that complainant is Supervisory Principal Maintenance
Inspector, FG-K employed at the agency's FAA Southern Region Office of
Security and Hazardous Materials.
On March 20, 2006, complainant filed the instant formal
complaint. Therein, complainant claimed that he was the victim of unlawful
employment discrimination on the bases of race (Caucasian) and in reprisal
for prior protected EEO activity. Complainant claimed that in November
2005, two agency special agents (hereinafter referred to as L and H)
were sent to his facility to investigate the conduct of an agency office
manager (male, black). Complainant noted that L and H are also black.
Complainant claimed that one of the agency special agents (L) stated that
he was going to investigate what appeared to be "three white boys trying
to unseat a black manager." Complainant further claimed that L carried
out "third degree criminal type investigations." Complainant asserted
that "being falsely accused of something ... based on a solely racist
motivation is intolerable." Complainant indicated that in the wake of L's
actions, complainant has filed numerous complaints, which has in turn
prompted L to "step up his attacks" by requesting "hundreds of records
and documents "in a fishing expedition" to find out any information that
he can about complainant.
On March 27, 2006, the agency issued a final decision. Therein, the agency
consolidated the instant complaint with two other formal complaints
filed by other agency Principal Maintenance Inspectors.2 The agency
identified the claim raised in the formal complaint as:
On November 1, 2005, complainant was required to participate in an
investigation conducted by two FAA Special Agents who were investigating
a number of allegations about the conduct of a named agency Office
Manager and he was illegally threatened with jail or prison, yelled at,
and threatened by the investigators.
The agency dismissed the three complaints for failure to state a
claim. Specifically, the agency determined that although the three
complainants were required to participate in an investigation regarding
charges about the Office Manager, nothing in the record indicates that
complainants were subjected to an adverse personnel adverse action due
to the participation.
On appeal, complainant argues that as a result of the alleged agency's
retaliatory investigation, he has developed various medical problems
and was recently non-selected for a position abroad.
The Commission acknowledges that we have held that being subject of an
internal investigation does not render an individual aggrieved under
the EEOC Regulations, because an investigation is a preliminary step
toward a personnel action. See Mattocks v. Department of the Navy,
EEOC Request No. 05950549 (August 29, 1996).
However, in the instant case, complainant claims that the investigation
of an office manager conducted by L and H had overt racial overtones
which precipitated, in essence, an investigation of complainant
himself. Complainant claims further that the investigation was not a
singular event, but has, instead in a continued scrutiny of complainant
and that L "keeps digging ... on this personal vendetta."
Given these circumstances, the Commission determines that complainant has
alleged a personal loss or harm regarding a term, condition, or privilege
of employment for which there is a remedy. See Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The agency's final decision dismissing complainant's complaint is
REVERSED. Complainant's complaint is REMANDED to the agency for further
processing in accordance with this decision and the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims 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 (K0900)
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 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)(Supp. V 1993). 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 (M0900)
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
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
October 26, 2006
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 Both of the other employees have appeals pending before the Commission
(Mark Sawyer, EEOC Appeal No. 0120062888; and Keith DeBerry, Appeal
No. 0120062887).
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01A62889
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120062889
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0120062889