0120091928
08-03-2009
Leemanuel Wakefield, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Leemanuel Wakefield,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091928
Agency No. 200P05372009100658
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 12, 2009, dismissing his 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of reprisal for prior protected EEO activity when:
1. On November 6, 2008, during a meeting, the Associate Chief yelled at
complainant while unjustly scolding him for an alleged performance issue,
and became so agitated that the Associate Chief was shaking his finger
and pointing it at complainant from about eight feet away.
2. On November 11, 2008, complainant emailed the Associate Chief about his
conduct. The Associate Chief responded to complainant and included the
Chief. In response to complainant's e-mail, the Chief sent an e-mail to
complainant, the Associate Chief, and the EEO Program Manager requesting
a meeting so that it will be clear on the definition of reprisal and the
"inappropriateness of intimidation by subordinate staff."
The agency dismissed the complaint finding that complainant failed to
state a claim of harassment. Complainant appealed. His attorney argued
that complainant did not allege that he was subjected to harassment
but rather unlawful retaliation. In addition, complainant's attorney
asserted that this is another of many claims of retaliation alleged by
complainant in the past. Finally, the attorney argues that the term
"subordinate staff" refers to complainant and that the agency is not
correct in finding that the meeting as suggested by the Chief would not
have a chilling effect on a reasonable employee. The agency requests
that the Commission affirm its final decision.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
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.
Upon review of the record, we note that complainant did not indicate
that the event on November 6, 2008, would be reasonably likely to deter
protected activity. Complainant only asserted that the Chief's e-mail
response would have a "chilling effect" on the EEO process. However,
we find that the Chief's e-mail was merely a response to complainant's
e-mail raising the events of the November 6, 2008. The record shows
that complainant did not actually have the meeting suggested by the
Chief nor did management force a meeting. Therefore, we find that the
Chief's e-mail response on November 11, 2008, would not have reasonably
likely to deter protected activity. Therefore, we find that the agency's
dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(1).
Accordingly, the Commission affirms the agency's final decision.
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 (S0408)
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. 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
August 3, 2009
__________________
Date
2
0120091928
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091928