01990565
11-08-1999
Joseph H. Duegaw Jr., Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, ______________________________)
Joseph H. Duegaw Jr., )
Appellant, )
)
v. ) Appeal No. 01990565
) Agency No. OPOR98006
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
______________________________)
DECISION
On October 23, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by or on October 18, 1998,
pertaining to a complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The Commission accepts appellant's appeal in
accordance with EEOC No. 960, as amended.
The record reflects that on May 22, 1998 appellant initiated contact
with an EEO counselor. During the request for counseling, appellant
stated that in April 1998 he received a performance appraisal from his
immediate supervisor, Major David K. Hazlett (hereinafter referred to as
Major. Hazlett), that reflected a rating of �Fully Successful�, which is
lower than his previous appraisals for years 1995-1997 that reflected
a higher rating of �Excellent�. Appellant alleged that Major Hazlett
lowered his appraisal due to his race (Caucasian), national origin
(American)and reprisal for reporting Major Hazlett for a security
violation between the years 1990-1992.
On September 3, 1998 appellant filed a formal complaint alleging that
he was the victim of unlawful employment discrimination on the basis of
his race and national origin when his performance appraisal was lowered.
On October 8, 1998 appellant sought to amend his complaint to allege
that he was also the victim of unlawful employment discrimination on
the basis of reprisal, which was previously
raised during the counseling period, but omitted from his formal
complaint.
On October 2, 1998, the agency issued a final decision dismissing
appellant's amendment for failing to submit the amended complaint
within 15 days of receiving the right to go formal pursuant to 29 CFR
�1614. 107(b), and for failing to state a claim pursuant to 29 CFR
�1614.107(a).
On appeal, appellant contends that the allegation of reprisal was not
included within his timely filed complaint, but he should be afforded
the right to include such because the allegation was originally discussed
with the EEO counselor.
In order for an employee or applicant to be protected from retaliation,
under Title VII of The Civil Rights Act of 1964, � 704(a), 42 U.S.C. �
2000e-3(a), they must establish that they engaged or participated in
a protected activity. It is also well settled law, that engaging
in whistle-blowing, is not a protected EEO activity. See Reavill
v. Department of the Navy, EEOC Appeal No. 05950174 (July 19, 1996).
According to the record, appellant has only alleged retaliation for
whistle-blowing. Therefore, appellant has failed to demonstrate that he
has engaged or participated in a protected activity. Thus, the agency's
final decision dismissing appellant's allegation of retaliation/reprisal
is affirmed. <1>
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 (S0993)
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:
November 8, 1999
____________________________
DATE Carlton M. Hadden, Acting
Director 1Since we are affirming the agency's
dismissal of retaliation/reprisal on the grounds that appellant
failed to state a claim pursuant to 29 C.F.R. �1614.107(a), we will
not address the agency's alternative ground for dismissal, i.e.
untimely filing pursuant to 29 C.F.R. �1614.107(b).