Shirley Morgan-Jordan, Complainant,v.Mike Johanns, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionSep 28, 2006
01A63412 (E.E.O.C. Sep. 28, 2006)

01A63412

09-28-2006

Shirley Morgan-Jordan, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.


Shirley Morgan-Jordan,

Complainant,

v.

Mike Johanns,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01A63412

Agency No. CSREES-2006-00163

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated March 30, 2006, dismissing her 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.

The record indicates that complainant contacted the EEO Counselor on April

2005. On December 19, 2005, complainant was issued a Notice of Right to

File (hereinafter "Notice"). Complainant stated that she received the

Notice on January 4, 2006. Subsequently, on January 18, 2006, complainant

filed her formal complaint. In her complaint, complainant alleged that she

was subjected to discrimination on the basis of race (African-American)

when:

1. In July 2001, complainant was hired as a GS-8, and was performing

the duties of a position that had been previously filled by a

Caucasian woman who was paid at the GS-9 level. Thus, since July

2001 until the present, complainant has been performing the same

duties, plus additional duties, as had been performed by a person

outside of her protected class, for less pay than the person

outside of her protected class received.

2. In November 2004, complainant's supervisor requested that

complainant's position be raised to the GS-9 level through an

accretion of duties; for this purpose a desk audit was requested.

The first auditor who evaluated complainant's position indicated to

her that he was surprised at the low level at which her job had

been rated. Complainant has been denied a copy of this first desk

audit and since then was informed that the agency had hired another

auditor to review the GS level of her position. The second auditor

was given an incorrect position description that did not match the

duties performed by complainant. Complainant received a copy of

the second audit report on October 11, 2005. This second report

indicated that her position was incorrectly graded and should

instead be graded at the GS-7 level. On October 11, 2005,

complainant was informed that as a result of the audit, the agency

was planning to demote her by downgrading her position to a GS-7.

3. In March 2005, complainant's performance appraisal for FY 2004-2005

was downgraded from Excellent to a High Superior by the Associate

Administrator who also made complainant's supervisor sign off on

the lower performance appraisal.

In addition, complainant amended her complaint to include a claim of

discrimination on the basis of reprisal for her initial EEO contact when:

4. On December 21, 2005, complainant's supervisor was called into a

meeting with the Administrator for Cooperative State Research,

Education, and Extension Service (hereinafter "Administrator").

The Administrator informed the Supervisor that she was aware that

complainant was filing an EEO complaint. The Administrator was

concerned about complainant going forward with the EEO complaint

because the next step that the agency would take would be to get an

outside audit of complainant's position and that this audit may

result in lowering of complainant's GS level to a GS-7. The

Administrator stated that if complainant did not file a formal

complaint, the agency would likely leave her in her current

position as a GS-8. Complainant was notified of this conversation

the same day.

The agency dismissed the initial complaint, namely claims (1)-(3), for

failure to file a formal complaint in a timely manner pursuant to 29 C.F.R.

� 1614.107(a)(2). The agency indicated that complainant received the

Notice on December 22, 2005. However, complainant did not file her formal

complaint until January 18, 2006, after the fifteen day time period. As

for the amendment, the agency found that claim (4) should be dismissed

because no concrete action was taken against complainant and, therefore,

she was not aggrieved.

Complainant filed the instant appeal from the dismissal of her complaint.

As to the dismissal of claims (1)-(3), she argued that she did not receive

the Notice until January 4, 2006. Furthermore, complainant provided a copy

of a printout from the U.S. Postal Service indicating that she did not

receive the Notice until January 4, 2006. As to claim (4), complainant

asserted that it was not a proposed action. Instead, complainant claimed

that the agency threatened to take action in retaliation for complainant's

protected EEO activity.

ANALYSIS AND FINDINGS

Claims (1)-(3)

The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent

part, that an agency shall dismiss a complaint which fails to comply with

the applicable time limits contained in 29 C.F.R. � 1614.106, which, in

turn, requires the filing of a formal complaint within fifteen (15) days of

receiving notice of the right to do so. Upon review of the record, we find

that complainant received the Notice on January 4, 2006 and filed her

formal complaint on January 18, 2006. Therefore, we conclude that

complainant's formal compliant was filed in a timely manner. As such, we

determine that the agency's dismissal of claims (1)-(3) for untimely filing

of the formal complaint was in error.

Claim (4)

As for claim (4), the agency argued that no concrete action was taken by

the agency in this matter and so complainant was not aggrieved or harmed.

We disagree. In claim (4), complainant asserted retaliation when the

Supervisor told complainant that if she did not file a formal complaint,

the agency would likely leave her in her current position as a GS-8.

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. Regarding complainant's claim of reprisal, the Commission has

stated that adverse actions need not qualify as "ultimate employment

actions" or materially affect the terms and conditions of employment to

constitute retaliation. See Lindsey v. United States Postal Serv., EEOC

Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No.

915.003 (May 20, 1998)). Instead, the statutory retaliation clauses

prohibit 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. Id. Upon review, we find that complainant clearly has

stated a claim of unlawful retaliation as to claim (4). Therefore, we find

that the agency's dismissal was inappropriate.

Accordingly, we REVERSE the agency's final decision and REMAND claims (1)-

(4) for further processing in accordance with the order below.

ORDER (E0900)

The agency is ordered to process the remanded claims (1)-(4) 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 (K0501)

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 (M0701)

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 (R0900)

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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 28, 2006

__________________

Date