0120092700
12-04-2009
Katherine J. Stewart, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Katherine J. Stewart,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120092700
Agency No. AREUSCHIM09FEB0793
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 30, 2009, dismissing her 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
At the time of the events at issue, complainant was employed by the agency
as the Command Judge Advocate (attorney) for the 598th Transportation
Group, the Netherlands (598th NL). In her complaint, complainant alleged
that she was subjected to discrimination on the bases of sex (female),
age (50 years at time of incidents), and reprisal for prior protected
EEO activity under a statute that was unspecified in the record when:
1. on January 22, 2009, complainant was notified of the transfer of her
position from the Netherlands to Scott Air Force Base, Illinois;
2. complainant received a rating of 3.1 instead of a 5 for the rating
period from October 2007 through September 2008;
3. the agency changed complainant's rating official for Fiscal Year 2009;
and
4. in March 2009, management made the decision to remove a Paralegal
Specialist from complainant's location to Headquarters.
In its decision issued on April 30, 2009, the agency dismissed claim
1 pursuant to 29 C.F.R. � 1614.107(a)(5) on the grounds that it was a
proposed action. The agency also found that complainant's EEO counselor
contact was untimely. The agency dismissed the remaining three claims
for failure to state a claim on the grounds that complainant was not
harmed by the agency's actions.
In brief, on appeal complainant argues that, as regards claim 1, the
action is not a proposed action and was timely raised. As regards
claim 2, complainant argues that a lowered rating, especially one that
results in lower compensation, as is the case here, does result in harm
and hence states a claim. As regards claim 3, complainant argues that
she is harmed because her new rating official is located in a different
country, and as regards claim 4, the loss of the paralegal hampered
complainant's ability to perform her duties.
We note initially that complainant has claimed reprisal as a basis
of discrimination. The FAD found that complainant had not engaged in
protected EEO activity. The FAD states:
your allegation of reprisal for participation in 'EEO offenses' does
not constitute EEO reprisal. . . . you participated in an Article
15-6 with EEO-related activity. An Article 15-6 does not qualify for
EEO reprisal. EEO reprisal must be in direct relation to participation
in an EEO activity such as filing an EEO complaint or participating as
a witness in an EEO complaint. FAD. p.2.
The agency has not explained what an "Article 15-6" is or why
participation in such an action does not "qualify for EEO reprisal." Id.
The Commission has held that protected EEO activity includes opposition to
a practice made unlawful by one of the EEO statutes, and participation
in EEO activity, such as filing a charge, testifying, assisting,
or participating in any manner in an investigation, proceeding, or
hearing under the applicable statute, including testifying or presenting
evidence as part of an internal investigation pertaining to an alleged
EEO violation. See EEOC Compliance Manual, Section 2 - Threshold Issues,
No. 915.003 (May 12, 2000), at 2-14. In her Appeal Brief, complainant
argues that she "participated in an Army Regulation 15-6 Investigation
into EEO offences," Complainant's Appeal Brief, p. 5, that consisted of:
an investigation into complaints by individuals challenging employment
discrimination . . .. That participation included a) a close association
with the two individuals who first brought the charges to light and who
testified in that investigation; b) the rendering of a legal opinion
relating to this investigation; and c) administrative support of the
Investigating Officer. Id.
The Commission finds that the type of activity described by complainant
falls under the definition of protected EEO activity.
As regards claim 1, we find initially that complainant's EEO counselor
contact was not untimely. The agency found that complainant was notified
of the transfer/reassignment in June 2008, but did not contact an EEO
counselor until March 24, 2009. The record contains a Memorandum
to complainant, dated June 2, 2008, notifying her of the transfer
and stating that the transfer would be effective September 1, 2008.
It is clear, however, that no such transfer occurred on that date and
there is no evidence showing complainant has been transferred to date.
Any complaint about the June 2008 notice, therefore, would be moot.
Complainant argues on appeal that her complaint does not refer to the
June 2008 notice, but rather to a second transfer notice she received
on January 22, 2009, which states that the transfer will be effective
June 6, 2010. Given these factors, we find that the date of the alleged
action was January 22, 2009.
The FAD states that complainant did not contact an EEO counselor until
March 24, 2009. A review of the EEO counselor's report, however,
shows that complainant's first counselor contact was on February 24,
2009, and complainant has submitted copies of e-mails showing that she
attempted to contact a counselor prior to February 24, 2009, but no one
would pick up the telephone. Accordingly, we find that complainant's
EEO counselor contact was timely.
The agency also found that the action was a proposed action. Complainant
argues that the action is not a proposed action because it does not
propose or suggest that her position will be transferred, but "instead it
clearly instructs me of the decision , . . that my position will transfer
on a specific date." Complainant's Appeal Brief, p. 2. Following a
review of the record, we find that the action is a final, not proposed,
action that takes effect in the future. The record shows that a final
decision was made in January 2009 to transfer complainant on a specified
future date. Furthermore, the agency gave complainant until January
29, 2009 to accept the job offer at Scott Air Force Base or lose it.
Finally, we note that complainant is alleging reprisal. The Commission
has a policy of considering reprisal claims with a broad view of coverage.
See Carroll v. Department of the Army, EEOC Request No. 05970939 (April
4, 2000). Under Commission policy, claimed retaliatory actions which
can be challenged are not restricted to those which affect a term or
condition of employment. Rather, a complainant is protected from any
discrimination that is reasonably likely to deter protected activity.
See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May
20, 1998), at 8-15; see also Carroll, supra. Given these factors, we
find that being notified of a transfer to a workplace thousands of miles
away is an action that is reasonably likely to deter protected activity.
Accordingly we find that the agency erred in dismissing claim 1.
As regards claim 2, the Commission has consistently found that, even
when a lowered evaluation does not result in any change in compensation,
it states a valid claim. In the instant complaint, complainant argues
that her lowered evaluation also resulted in a loss of compensation.
Accordingly, we find that complainant has shown a present harm or loss
with respect to a term, condition, or privilege of employment and hence
states a valid claim. See Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994).
As regards claims 3 and 4, we note that the agency analyzed these claims
using the Diaz analysis and concluded that complainant had not shown any
harm. As noted above, however, complainant also alleges reprisal and such
claims are considered with a broad view of coverage. See Carroll, supra.
We also note complainant's assertions that the assignment of a new rater
in Illinois and the removal of her paralegal were initial steps in,
or made to add further justification to, the agency's planned transfer
of complainant to Illinois. Having analyzed claims 3 and 4 according
to the reprisal standard, and in conjunction with claims 1 and 2, we
find that complainant states valid claims of reprisal. We find that
complainant's allegations concerning these claims is sufficient to state
a viable claim of retaliation that requires further investigation.
Accordingly, for the reasons stated above, we REVERSE the FAD and REMAND
the complaint to the agency for processing in accordance with the Order
below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with 29
C.F.R. � 1614.108 et seq. 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 (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 (R0408)
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 (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
December 4, 2009
__________________
Date
2
0120092700
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120092700