0120160866
05-12-2016
Shayne K.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shayne K.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120160866
Agency No. 9V1M16003
DECISION
Complainant filed a timely appeal with this Commission from the Agency's November 24, 2015 decision, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former employee of the Agency's Tinker Air Force Base facility in Tinker Air Force, Oklahoma.
On November 16, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of reprisal for his prior protected EEO activity in 2009. He identified himself as a "whistleblower." Specifically, he alleges that, on September 26, 2015, two unnamed individuals followed him and called the police to falsely accuse Complainant of stealing, which resulted in him being questioning by Police Officers from the Oklahoma City Police Department. Complainant maintains that the individuals who reported him were Department of Defense Special Agents, working under the authority of the Secretary of the Air Force to harass him.
The record shows that Complainant retired from federal service in 2010. Complainant is self-employed as a long distance truck driver. Although he was stopped by the police, there is no evidence that Complainant was prosecuted. Moreover, he acknowledged that he did not know the identity of the two individuals who were involved in the alleged retaliatory harassment and that "this complaint does not affect any government employment."
The Agency dismissed the complaint, noting that Complainant "failed to identify a tangible act that has adversely affected his employment" and therefore did not meet the definition of an aggrieved person. The Agency also reasoned that Complainant was not aggrieved because he was not alleging a harm or loss associated with employment, because Complainant was not currently an Air Force employee or applicant for Air Force employment.
This appeal followed.
ANALYSIS AND FINDINGS
A former employee may state a viable retaliation claim for protected activity that arose from his employment with an agency even if the disputed agency action occurred after the termination of the employment relationship. See Doyle v. Department of Justice, EEOC Request No. 0520070207 (October 12, 2007) (complainant stated a viable claim of retaliation when, as a former employee who had engaged in protected EEO activity, he was not selected for a contract position with the agency after his retirement); Machlin v. United States Postal Service, EEOC Appeal No. 0120070788 (March 29, 2007) (complainant stated a viable claim of retaliation when, as a former employee who had engaged in protected EEO activity, he was not selected for a contract position with the agency); Bimes v. Department of Defense, EEOC Appeal No. 01990373 (April 13, 1999) (allegation of retaliation involving agency's refusal to provide a former employee with post-employment letters of reference states a viable claim).
However, in this case, Complainant has not alleged an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). His claims appear to be for criminal harassment and his remedy would be to file a criminal charge against the individuals whom he believed followed him and caused him to be stopped and questioned by the police. Moreover, to establish a claim of harassment against the Agency, there must be a basis for imputing liability to it. Without any information identifying the culprits as Agency employees or agents, we find that the claim lacks the necessary specificity to state a viable claim.
Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 tends 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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 12, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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