0120093047
11-18-2009
Keith B. Whetstone, Complainant, v. Gary Locke, Secretary, Department of Commerce, Agency.
Keith B. Whetstone,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120093047
Agency No. 09-63-00120D
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated May 29, 2009, dismissing his formal 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.
On April 1, 2009, complainant filed the instant formal complaint.
Therein, complainant claimed that he was subjected to discriminatory
harassment and a hostile work environment when the former Local Census
Office Manager (OM)1 committed the following "prohibited personnel
practices":
1. On three (3) occasions in December 2008, OM asked him to purchase a
cellular phone.
2. On December 16, 2008, after calling the office and advising that he
would be out due to inclement weather, OM telephone him several times
and urged him to come to work.
3. On or about December 18, 2008, OM called a meeting with him and four
other assistant managers. During the meeting, OM announced that all
managers would work "in house" and would no longer be allowed to work in
the field. After complainant questioned this determination, OM "took
offense." After complainant pointed out to OM that his determination
was contradictory to recruiting mandates, training manuals, and other
operational procedures, OM "abruptly interrupted" him and restated his
decision.
4. On or about December 30, 2008, he assisted the Assistant Manager for
Recruiting with training. After the training, OM commented to him that
one of the Recruiting Assistants (RAs), [a named female employee], was too
quiet and would not make a good RA and therefore instructed him to watch
her and provide him with any information that could be used against her
in order to disqualify her from employment. After commenting to OM that
he thought this employee would make a good RA and providing examples,
OM shook his head at him and walked to his office.
5. On or about January 2, 2009, OM called a meeting concerning a previous
meeting OM had with an office clerk. According to OM, [Office Clerk (OC)]
had "gone over his head" in order to obtain a "battle field promotion"
because she had not signed off on a promotion. During the meeting,
OM instructed the assistant managers in attendance to no longer speak
to [OC] about a promotion and instructed them to tell her that there
were no positions available at this time. During this same meeting,
complainant advised OM that [OC] was great candidate for a RA position
and should be promoted. However, OM repeated his instructions.
6. On January 9, 2009, complainant was verbally "admonished" by OM when
he accused him of being "indifferent" to the Decennial Census because he
had not looked over maps with [Assistant Manager for Field Operations].
During this meeting, OM questioned complainant about having the "google"
logo posted on his computer screen everyday and told him he does not know
what he does all day. OM rudely and abruptly cut complainant off when
he tried to provide an explanation. Later on during this same meeting,
OM told complainant he was not following procedures.
7. On January 13, 2009, OM advised him that the Dallas Regional Census
had informed him of his EEO complaint and asked him to consider taking a
Field Operations Supervisor position. After advising OM that he did not
wish to discuss the EEO complaint, OM responded by saying that the meeting
was about the Field Operations Supervisory position, not the complaint.
Later, during the conversation, OM told complainant that in order to
continue to be employed, he had to "show/prove" to him that he was not
"indifferent" to the project.
8. On January 23, 2009, OM again asked him if he had purchased a cellular
phone and whether he could afford a cellular phone, and advised him that
there would be "problems" if he did not purchase one.
9. On January 26, 2009, OM called him into his office and told him about
a position available outside of the office and told him that he should
apply.
10. On February 2, 2009, the EEO Counselor asked him if he would attend
a meeting at the Dallas Regional Census Center with two other parties;
however, when the meeting occurred, two other parties not previously
identified by the EEO Counselor were also present at the meeting, which
compromised his anonymity.
On March 29, 2009, the agency issued a final decision dismissing claims 1
- 9 for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1),
finding that complainant was not aggrieved. With regard to claims
1 - 6, the agency found that complainant failed to provide a basis
for the alleged discrimination. Specifically, the agency noted that
in the instant formal complaint, complainant cited retaliation as the
only basis of discrimination, but had no record of prior EEO activity.
With respect to claims 7 - 9, the agency determined that these claims do
not rise to the level of actionable harassment. With respect to claim 10,
the agency dismissed it pursuant to 29 C.F.R. � 1614.107(a)(8), finding
that it raised dissatisfaction with the processing of a complaint.
On appeal, complainant, through his attorney, states "this appeal does
not directly address the agency analysis of claims 1 through 3, 6,
and 10," and further states "claims 4, 5, 7, 8 and 9 are our focus."
Therefore, we conclude that complainant is not contesting the agency's
dismissal of claims 1-3, 6 and 10, and will not address them further in
this decision.
In his appeal, complainant argues that the agency's analysis of his
remaining claims was incorrect. Specifically, complainant states that
the agency improperly dismissed claims arising before January 12, 2009
(claims 4 and 5), because in addition to retaliation, he asserted a claim
of race discrimination. Finally, complainant states that he was engaged
in protected opposition to perceived discrimination when he was directed
by OM "to take unwarranted and unfavorable actions against two black
females as racially motivated, he was clearly claiming he was aggrieved
in the terms, conditions, and privileges of employment in that he regarded
this as asking him to violate the law (Title VII) as part of his job."
In response, the agency argues that while the EEO Counselor's Report
reflects that complainant identified race and retaliation as bases during
the pre-complaint process, complainant's formal complaint only has the
"retaliation" box checked. The agency further argues that complainant
abandoned his race claim when he did not list it on his formal complaint
form. Finally, the agency argues that complainant attempted to revive his
retaliation claim by asserting that he engaged in protected opposition
to perceived discrimination when he objected to the OM's instructions
to hinder the advancement of two African-American females and that it
was "prohibited personnel practices." The agency argues that there is
no evidence in the record indicating complainant informed OM that he
perceived its instructions to be discriminatory.
Upon review, the Commission finds that complainant has not, as the
agency claims, abandoned the bases of race discrimination. We note that
this is not a new basis of discrimination because complainant raised
the basis of race discrimination in his request for EEO counseling.
The Commission has previously held that: it is well established that EEO
charges are to be liberally construed to effectuate the purposes of the
discrimination statutes and the crucial role of the private litigant in
the statutory scheme. Sanchez v. Standard Brand, Inc., 431 F.2d 455
(5th Cir. 1970); President v. Vance, 627 F.2d 353 (D.C. Cir. 1980)
(applying the Sanchez principles to federal employees). Furthermore,
the Commission has the authority to "reframe charges and use available
materials and information to articulate lay complainant's charges."
Blue Bell Boots, Inc. v. Equal Employment Opportunity Comm'n, 418 F.2d
355, 357 (6th Cir. 1969). Rajpal v. United States Postal Serv., EEOC
Request No. 05920037 (May 19, 1992).
The Commission finds that under the principles set forth in Rajpal, the
basis of race discrimination should be considered as part of complainant's
complaint.
Moreover, regarding the basis of reprisal, the Commission determines that
complainant has satisfactorily raised this basis during the EEO complaint
process, for the reasons identified by complainant's attorney on appeal.
Finally, the Commission determines that claims 4, 5, 7, 8, and 9 address a
personal loss or harm to a term, condition, or privilege of complainant's
employment.
Accordingly, the agency's dismissal of claims 4, 5, 7, 8, and 9 on the
bases of race and reprisal is REVERSED. These claims are REMANDED to
the agency for further processing in accordance with the ORDER set forth
below.
ORDER (E0408)
The agency is ordered to process the remanded claims (claims 4, 5, 7, 8,
and 9 on the bases of race and reprisal) 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
November 18, 2009
__________________
Date
1 The record reflects that OM resigned from agency employment sometime
on or prior to April 6, 2009.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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