0120083775
11-14-2008
Rodney E. Davis, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Rodney E. Davis,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120083775
Agency No. ARPINEB08JUL02758
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 12, 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.
In a complaint dated August 11, 2008, complainant alleged that he was
subjected to discrimination on the bases of race (African-American)
and reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when he was assigned to a "lesser" job and
subjected to an investigation based on six-month old allegations.
Briefly, the record indicates that two employees complained about
complainant's behavior. Thereafter, an investigation was undertaken
and complainant was temporarily detailed at his current grade during
the investigation.1 The agency indicated that complainant retained his
pay during the detail. In its final decision, the agency dismissed the
complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state
a claim. Specifically, the agency stated that complainant failed to
show that he suffered harm or loss with respect to a term, condition,
or privilege of employment for which there is a remedy.
As noted by the agency, 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). However, the anti-retaliation
provisions of the employment discrimination statutes seek to prevent an
employer from interfering with an employee's efforts to secure or advance
enforcement of the statutes' basic guarantees, and are not limited to
actions affecting employment terms and conditions. Burlington Northern &
Santa Fe Railroad. Co. v. White, 548 U. S. ____, 126 S. Ct. 2405 (2006).
To state a viable claim of retaliation, complainant must allege that:
1) he was subjected to an action which a reasonable employee would have
found materially adverse, and 2) the action could dissuade a reasonable
employee from making or supporting a charge of discrimination. Id.
While trivial harms would not satisfy the initial prong of this inquiry,
the significance of the act of alleged retaliation will often depend
upon the particular circumstances. See also EEOC Compliance Manual,
No. 915.003 (May 20, 1998) (any adverse treatment that is based upon a
retaliatory motive and is reasonably likely to deter the charging party
or others from engaging in protected activity states a claim).
Given that one of the bases of the captioned complaint is reprisal, we
find that the agency failed to apply the appropriate legal standard in
analyzing whether the complaint set forth an actionable claim. As noted
above, in order to state a claim under the Commission's broad view of
reprisal, a complainant need not allege that he is "aggrieved" under the
Diaz standard as stated by the agency, but only that he suffered adverse
treatment that is based upon a retaliatory motive and was reasonably
likely to deter the charging party or others from engaging in protected
activity. Under the facts as alleged by complainant, we find he has
asserted a viable claim of unlawful retaliation that requires further
processing by the agency, including an investigation.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED and the complaint is REMANDED to the agency for
further processing pursuant to the following Order.
ORDER (E0408)
The agency is ordered to process the remanded complaint 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 (K0408)
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 (M0408)
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 (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
November 14, 2008
__________________
Date
1 The agency states on appeal that the investigation resulted in a
written reprimand being issued to complainant. However, the agency
indicates complainant is pursuing that action through the negotiated
grievance procedure rather than the EEO process.
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0120083775
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120083775