01a52515
02-24-2006
Laurence Zieff, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Laurence Zieff v. Department of Homeland Security
01A52515
02-24-06
.
Laurence Zieff,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A52515
Agency No. HS 05-0288
DECISION
On February 15, 2005, Laurence Zieff (complainant) filed an appeal
from the agency's final decision dated January 19, 2005, dismissing his
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 appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted
in accordance with 29 C.F.R. � 1614.405. For the following reasons,
we vacate the agency's decision and remand the instant complaint for
processing.
At the time of these events. complainant work as an attorney in the
agency's Commercial and Administrative Law Division, Immigration and
Customs Enforcement, Office of Principal Legal Advisor. While he
was physically situated at agency offices in Vermont, the Chief (S2)
and Deputy Chief (S1) of the division are located in Washington, D.C.
On Tuesday, July 27, 2004, complainant was directed to travel to
Washington for a meeting on Thursday with S2 and S1; he was told that
the meeting was concerning the �T� case. According to complainant, he
appeared as directed prepared to discuss the T case, but, instead, S1 and
S2 �interrogated and threatened [complainant] over absurd allegations
that I lied about my military leave and other matters,� threatening
to refer him to the agency Office of Professional Responsibility.
(Complaint, September 3, 2004).
Complainant further asserted that the actions of S1 and S2 were in
retaliation for a decision from an EEOC Administrative Judge (AJ) in his
favor that could result in a substantial award of back pay.<1> The AJ's
decision on liability was issued on July 1, 2004, 27 days before he was
called to the meeting. Complainant also stated that the actions of his
managers had a chilling effect on him and possibly other, caused him
trepidation and mental distress, for which he consulted medical services.
We note that complainant's statements are not rebutted or otherwise
explained by the agency.<2>
The agency dismissed the complaint pursuant to 29 C.F.R. �� 1614.107(a)(1)
and 1614.107(5) for failure to state a claim and to assert a tangible
personnel action was taken against him. Specifically, the agency found
that complainant was not aggrieved, since he did not sustain a present
harm or loss with respect to a term, condition, or privilege of employment
for which there is a remedy and no action was taken against him. In its
brief, the agency provided legal argument in support of its determination
and asserted that S1 and S2's action were, "at most, a trivial slight
to him."<3>
In Section 8 of the New Compliance Manual on Retaliation (5/24/1998)
(Manual), the Commission recognized that the anti-retaliation provisions
of the EEO statutes are exceptionally broad, prohibiting discrimination
based on an individual's protected activity. See, e.g., 42 U.S.C. �
2000e-3. For this reason, the Commission holds that the anti-retaliation
provisions prohibit any discrimination that is reasonably likely to deter
protected activity, not just actions that affect the terms and conditions
of employment. For example, an agency violates the anti-retaliations
provisions if it retaliates against an employee for engaging in protected
activity through "threats, harassment in or out of the workplace, or
any other adverse treatment that is reasonably likely to deter protected
activity by that individual or other employees." Manual, 8.II.3.
The Commission has identified three essential elements to assert a claim
of retaliation. Section 8.II. First, a complainant must have engaged
in protected activity, either by opposing a discriminatory act or policy
or by participating in the EEO process. Id. Next, the complainant
must allege an adverse action, that is, "any adverse treatment based
on a retaliatory motive and [that] is reasonably likely to deter the
[complainant] or others from engaging in protected activity."<4>
Id. Finally, the complainant must show causation through direct or
circumstantial evidence.
In the matter before us, complainant has asserted unreubtted facts that he
engaged in prior EEO activity, that the agency made threats to him that
were likely to deter him or others from engaging in protected activity,
and that a causal connection existed, since the agency's threats took
place soon after issuance of a decision in his favor. We find, therefore,
that complainant has stated a claim of retaliation.
For the above reasons, we find that the agency erred in dismissing
complainant's complaint.
CONCLUSION
Accordingly, the agency's decision is vacated. The agency is directed
to comply with 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 (K0501)
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)
(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 (M0701)
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
_____02-24-06_____________
Date
1This matter is pending before the Commission on the agency's appeal
from the AJ's decision in Hearing No. 160-2003-08266x. See EEOC Appeal
No. 07A40139.
2We note that neither S1 nor S2 responded to the EEO Counselor's request
for an interview, and the note-taker, a staff attorney, did not respond
or provide the notes from the meeting. The agency is responsible for
ensuring the cooperation of its agents in the EEO process. 29 C.F.R. �
1614.102(b)(3).
3In its brief, the agency asserted facts not in evidence. To the
extent that it made arguments regarding such facts, we will disregard
its attempt to lessen the impact as stated by complainant.
4The Commission notes that some courts limit retaliation claims to
'ultimate' or 'tangible' employment actions and/or require that the action
materially affect the terms, conditions, or privileges of employment.
Id.