0120090724
03-10-2009
Michael R. Clopper, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Michael R. Clopper,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120090724
Agency No. 200822303FHWA01
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 10, 2008, 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
At the time of the events at issue, complainant was employed by the agency
as a Computer Specialist, GS-12, with the Federal Highway Administration.
On October 2, 2008, complainant filed an EEO complaint with the agency
alleging he had been subjected to discrimination on the bases of race
(Caucasian), religion (Christian), disability (unspecified mental
disability), and reprisal for prior protected EEO activity.
In its final agency decision (FAD) dismissing the appeal, the agency
characterized the issues raised in the complaint as follows:
1. On May 6, 2008, complainant was not selected for the position of
Computer Specialist, GS-12, with the Defense Supply Center in Richmond,
Virginia;
2. In June 2008 among derogatory comments complainant was told he needed
to see a psychiatrist;
3. In October 2007, complainant was excluded from consideration into
the Academic Study Program;
4. In November 2006, complainant was removed from the position of IT
team leader; and
5. In September 2006, complainant was excluded from consideration into
the Academic Study Program
Based on these definitions of the issues, the agency dismissed issue 1 for
failure to state a claim on the grounds that the claim was filed against
the wrong agency. The agency noted that the position in question was with
the Department of Defense and found that the complaint should have been
filed against that agency. The agency dismissed issue 2 for failure to
state a claim, finding that complainant incurred no harm as a result of
the comments. The agency dismissed the remaining issues for untimely EEO
counselor contact. Finally, the agency found that the actions complained
of were insufficiently severe of pervasive to alter the conditions of
complainant's employment and create a hostile work environment.
As an initial matter, we find that a fair reading of the complaint,
including its attachments, along with the related EEO counseling
materials, reveals that the agency mischaracterized the issues in the
complaint and they are more properly defined as follows:
1. Complainant's supervisor (RMO) provided complainant with a bad
reference so that on May 6, 2008, complainant was denied a position with
another agency.
2. From "early 2006" to the present, complainant has been subjected
to harassment from coworkers who either shunned or teased him, a
coworker implied to others that complainant was using the internet for
inappropriate purposes, complainant was not provided sufficient work,
his leave usage was scrutinized, his telephone and internet use were
monitored, and RMO told him he needed to see a psychiatrist.
3. On an unspecified date two coworkers provided bad references for
complainant so that he was denied a security clearance, which prevented
him from obtaining a position in Rock Island, Illinois.
4. In September 2006 and again in October 2007, complainant was excluded
from consideration for the Academic Study Program.
5. In November 2006, complainant was removed from his team leader position
in Information Technology (IT).
As already noted, in issue 1 complainant is actually alleging that
RMO provided a poor or damaging employee reference. The denial of the
position with the Defense Supply Center is merely the alleged result of
RMO's actions and is not the essence of complainant's complaint. As such,
complainant's allegation was made against the correct agency and the
FAD erred in dismissing the complaint on the grounds that the complaint
should have been made against the Department of Defense. In addition,
we note that the agency also failed to address complainant's allegation
that two coworkers provided poor references for a security clearance
for complainant, thus costing him a position outside the agency in Rock
Island, Illinois.
As regards the harassment claim, the agency considered RMO's alleged
statement that complainant needed to see a psychiatrist, as well as the
2006 and 2007 incidents, but failed to consider a number of other alleged
incidents such as coworkers either shunning or teasing complainant,
a coworker implying to others that complainant was using the internet
for inappropriate purposes, complainant not being provided sufficient
work, his leave usage being scrutinized, and his telephone and internet
use being monitored. In addition, because the agency found that issue
1 was filed against the wrong agency, the agency failed to include the
unfavorable reference allegation in its harassment analysis. Finally,
the agency failed to address the allegation concerning the poor references
that prevented complainant from obtaining a security clearance and a
position in Rock Island, Illinois. Considered together and assumed to
be true, these allegations are sufficient to state a claim of hostile
work environment harassment that requires further processing. Moreover,
as this is a single hostile work environment claim and at least one
alleged incident was raised with the EEO counselor in a timely manner,
there is also no basis of a dismissal on timeliness grounds.
According, we reverse the agency's dismissal decision and remand the
complaint for processing in accordance with the Order set forth below.
ORDER (E0408)
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 (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
March 10, 2009
__________________
Date
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0120090724
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090724