01994132
11-05-1999
Nelson Leonard, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Nelson Leonard, )
Appellant, )
)
v. ) Appeal No. 01994132
) Agency No. 9903J0020
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On April 21, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by or on April 10, 1999,
pertaining to a 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 Commission accepts appellant's appeal in
accordance with EEOC No. 960, as amended.
The record reflects that on December 10, 1998 appellant initiated
contact with an EEO Counselor. During the informal counseling period,
appellant alleged that on November 10, 1998, he was harassed and his
job was threatened by CPT Brent Walter and his Deputy Harold Brooks
because he previously filed a complaint with the Inspector General's
office against them.
On march 19, 1999, appellant filed a formal EEO complaint alleging that
he was the victim of unlawful employment discrimination on the basis
of reprisal. Appellant's complaint was comprised of the matter for
which he underwent EEO counseling, discussed above.
On April 7, 1999, the agency issued a final decision dismissing
appellant's complaint for failure to engage or participate in a protected
activity. The agency argues, that filing a complaint with the Inspector
General's office is not a protected activity
under Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq.
In the case at bar, the agency, in their decision, dismissed appellant's
basis of reprisal because he did not engage or participate in any
protected EEO activity. The anti-reprisal provision of Title VII protects
those who participate in the EEO process as well as those who oppose
discriminatory employment practices. Because the enforcement of Title
VII depends on the willingness of employees to oppose unlawful employment
practices or policies, courts have interpreted section 704(a) of Title
VII as intending to provide "exceptionally broad protection" to those who
oppose such practices. Pettway v. American Cast Iron Pipe Co., 411 F.2d
998, 1006 n.18 (5th Cir. 1969). A variety of activities has been found
to constitute opposition. Such as, complaints to supervisors regarding
employment discrimination. See, Armstrong v. Index Journal Co., 647
F.2d 441 (4th Cir.1981)and EEOC v. Red Baron steak Houses, 47 FEP cases
49 (D.N.D.C. Cal. 1988). Here, the record is clear, that appellant,
went even a step further than notifying his supervisors by contacting
the Inspector General's Office. Appellant, contacted the Office with the
intent to inform them of the unlawful harassment he was being subjected
to in an effort to eradicate it. Therefore, appellant has opposed an
unlawful employment practice and is thus covered under Title VII.
Accordingly, the agency's decision dismissing appellant's complaint
was improper and is REVERSED. Appellant's complaint is REMANDED to
the agency for further processing in accordance with this decision and
applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations basis' in
accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to
the appellant that it has received the remanded allegations
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to appellant a copy of the investigative file and
also shall notify appellant 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 appellant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with
the Commission's order, the appellant may petition the Commission for
enforcement of the order. 29 C.F.R. �1614.503 (a). The appellant
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. �� 1614.408, 1614.409, and 1614.503 (g).
Alternatively, the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V
1993). If the appellant files a civil action, the administrative
processing of the complaint, including any petition for enforcement,
will be terminated. See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
November 5, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations