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