Keith B. Whetstone, Complainant,v.Gary Locke, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionNov 18, 2009
0120093047 (E.E.O.C. Nov. 18, 2009)

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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