01992085
12-19-2000
Terrence A. Daniels, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Terrence A. Daniels v. Department of the Treasury
01992085
December 19, 2000
.
Terrence A. Daniels,
Complainant,
v.
Lawrence H. Summers,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01992085
Agency No. 99-3052
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) 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.<1> The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission finds
that complainant's complaint was improperly dismissed pursuant to 29
C.F.R. � 1614.107(a)(1), (a)(2), and (a)(5).
By formal complaint dated December 1, 1998, complainant alleged that he
was retaliated against based on prior EEO activity when, in or about
September 1998, an individual (CDC1) was assigned to serve as interim
Compliance Division Chief (complainant's fifth-level supervisor)
notwithstanding that complainant had previously filed numerous EEO
complaints alleging that she had subjected him to discrimination and
retaliation. In particular, complainant asserted that this assignment
was part of a pattern of retaliation against him, as evidenced by the
fact that an agency official had represented in an affidavit submitted
during the investigation of one of complainant's recent EEO complaints
that complainant had been reassigned so that he would no longer have to
work with the managers with whom he had alleged difficulties. By letter
dated December 20, 1998, which was construed by the agency as a proposed
amendment to the December 1, 1998 complaint, complainant further alleged
that he was further aggrieved by issuance of a notice of proposed removal
dated December 8, 1998.
By FAD dated January 4, 1999, the agency dismissed the complaint on
the following grounds: (a) the assignment of CDC1 to complainant's
division failed to state a claim because it did not render complainant an
"aggrieved" employee pursuant to 29 C.F.R. � 1614.103; (b) complainant
failed to contact an EEO Counselor regarding the notice of proposed
removal, as required under 29 C.F.R. � 105(a)(1); (c) issuance of the
notice of proposed removal does not raise a claim which can be added to
the complaint by amendment, because it is not "like or related" to the
original claim regarding assignment of CDC1 to complainant's chain of
command; and (d) even if the complaint was amended to add a claim based
on the notice of proposed removal, as a preliminary step to a personnel
action, the notice is not actionable.
We find that the agency incorrectly concluded that the assignment of CDC1
did not state a claim of retaliation. In reaching this conclusion,
we note that the agency disregarded the pattern of harassment alleged
by complainant in the original complaint. In a statement attached as
Exhibit B to his complaint summarizing his prior EEO complaints involving
the same managers, as well as various other filings, complainant asserts
that the action here at issue was part of a pattern of retaliatory
harassment. The Commission interprets the statutory retaliation clauses
"to prohibit any adverse treatment that is based on a retaliatory motive
and is reasonably likely to deter the charging party or others from
engaging in protected activity." EEOC Compliance Manual, Section 8
(Retaliation) at 8-13 - 8-14 (May 20, 1998). Viewed in light of this
standard, we find that complainant's original complaint stated a claim,
and was improperly dismissed.
We further find that the agency erred in dismissing complainant's second
claim (notice of proposed removal) on the ground that complainant had
not first contacted an EEO counselor regarding the claim. Complainant's
December 20, 1998 letter is fairly construed as a proposed amendment
to the complaint, which the agency was required to allow because the
new claim was "like or related" to the claim raised in the original
complaint.
Finally, while the agency correctly noted that 29 C.F.R. � 1614.107(a)(5)
provides for dismissal of a discrimination claim which challenges a
proposed, as opposed to final, personnel action, because the complainant
in such a situation is not "aggrieved," complainant's challenge to
his proposed notice of removal states a claim because, as noted above,
complainant clearly claims that the notice was part of a pattern of
retaliatory harassment. Where a challenge to a proposed employment
action is fairly construed as a retaliatory harassment claim, the claim
cannot be dismissed on the ground that complainant is not aggrieved,
because the challenged action has already affected the employee. See,
e.g. Brooks v. Department of Health and Human Services, EEOC Request
No. 05960209 (May 22, 1997) (allegation regarding notice of proposed
suspension stated claim for retaliatory harassment); see also Carroll
v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000).
Accordingly, we hereby VACATE the FAD and REMAND the amended complaint for
further processing in accordance with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
December 19, 2000
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.