Terrence A. Daniels, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionDec 21, 2000
01a05505 (E.E.O.C. Dec. 21, 2000)

01a05505

12-21-2000

Terrence A. Daniels, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Terrence A. Daniels v. Department of the Treasury

01A05505

December 21, 2000

.

Terrence A. Daniels,

Complainant,

v.

Lawrence H. Summers,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01A05505

Agency Nos. 95-1081; 95-1081R; 99-1013

DECISION

Complainant timely initiated appeals from two final agency decisions

(FADs) concerning his complaints 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.

In agency complaint no. 95-1081/95-1081R, filed on December 7, 1994,

complainant, then a GS-6 Computer Assistant at the agency's Internal

Revenue Service (IRS) Cincinnati, Ohio Service Center, alleged that he was

retaliated against for prior EEO activity when, on or about August 17,

1994, his manager documented complainant's incorrect scanning of certain

documents. Following an investigation, the complaint was dismissed as

moot on the ground that the memorandum in question had been removed from

complainant's file. However, on appeal, the dismissal was reversed in

light of the fact that complainant had also sought compensatory damages,

and the complaint was remanded to the agency for processing. See Daniels

v. Department of the Treasury, EEOC Appeal No. 01955024 (August 5, 1996),

request for reconsideration denied, EEOC Request No. 05960804 (July 10,

1998). On remand, the agency issued complainant a notice regarding his

right to request a hearing, but complainant did not respond.

In agency complaint no. 99-1013, filed on October 12, 1998, complainant,

who had become a GS-6 Tax Examining Assistant at the same facility,

alleged that he was further retaliated against for his prior EEO activity

when: (1) on or about May 28, 1998, management rated complainant lower

than he felt he deserved on his Job Element Appraisal for the period May

1, 1997 - April 30, 1998; (2) on or about July 2, 1998, management issued

complainant a 60-day Opportunity to Improve Letter; and (3) on or about

July 2, 1998, management postponed making a decision on complainant's

within-grade increase.<2> At the conclusion of the investigation,

complainant was informed of his right to request a hearing before an

EEOC Administrative Judge or alternatively, to receive a final decision

by the agency, but complainant failed to respond within the time period

specified in 29 C.F.R. � 1614.

On July 24, 2000, the agency issued two separate FADs. The first FAD

(FAD #1) addressed agency complaint nos. 95-1081/95-1081R and 99-1013,

finding no retaliation was proven in either complaint. The second

FAD (FAD #2), addressed agency complaint no. 99-1013, and contained a

duplicate analysis of that complaint, which had already been addressed

in FAD #1, and again found no retaliation was proven. Specifically,

with respect to both complaints, the agency found that complainant had

failed to prove that, more likely than not, the agency's proffered reason

for the challenged actions was a pretext for retaliation.

Complainant filed two notices of appeal, one from each FAD. On appeal,

complainant contends, inter alia, that the events at issue are part

of a pattern of retaliatory harassment comprised of incidents which he

has raised in a series of EEO complaints which have been fragmented and

improperly investigated by the agency.

The agency has filed a "Motion to Strike," requesting that the Commission

disallow complainant's correspondence on this appeal received after the

due date for complainant's brief. In addition, the agency contends on

appeal that the FADs should be affirmed for the reasons stated therein.

Finally, with respect to agency complaint no. 95-1081/95-1081R, the

agency contends that the claim challenging documentation of complainant's

incorrectly scanning certain documents is "unquestionably moot" because

complainant has since been removed from his employment, effective February

12, 1999.

Based on a careful review of the record, applying the standards

set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)

(applying McDonnell Douglas to reprisal cases), the Commission agrees

with the agency that complainant failed to establish by a preponderance

of the evidence that the agency's proffered reasons for the challenged

actions were a pretext for retaliation. In reaching this conclusion,

we note that the investigative record supports management's assertions

that to the extent any errors by other scanners were not documented in

the same manner, it is undisputed that those errors were not nearly as

extensive as the error with which complainant was charged. Further,

with respect to complainant's appraisal, Opportunity to Improve Letter,

and deferred within-grade increase, complainant has not met his burden

to establish that management's explanations regarding his performance

were a pretext for retaliatory motive. For this reason, we affirm the

agency's finding of no retaliation with respect to the claims raised in

both of the complaints.

However, we note the following two legal errors in the agency's appeal

briefs which, while not affecting our disposition of the instant appeal,

warrant correction.

First, the agency incorrectly contends that with respect to agency

complaint no. 99-1013, complainant's 60-day opportunity letter and

grade-increase postponement were merely proposals to take personnel

actions, and therefore the claims regarding those actions were subject

to dismissal under 29 C.F.R. � 1614.107(a)(5) and 1614.109(b). To the

contrary, the Commission has noted in its Compliance Manual as well

as in numerous decisions -� including decisions involving this very

same complainant �- that adverse actions need not qualify as "ultimate

employment actions" in order to constitute retaliation. 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); see also Daniels v. Department of the Treasury,

EEOC Appeal No. 05980378 (August 7, 2000).

Second, the agency incorrectly contends in its appeal brief that the

claims raised in agency complaint no. 95-1081/95-1081R are moot because

complainant is no longer employed by the agency. This is directly

contrary to our prior decision remanding the very same complaint for

further processing, in which we vacated the agency's dismissal for

mootness, and denied the agency's request for reconsideration based on

this same legal argument. See Daniels v. Department of Transportation,

EEOC Appeal No. 01955924 (August 5, 1996), request for reconsideration

denied, EEOC Request No. 05960804 (July 10, 1998). In that decision, we

explained that the claim could not be moot even though the documentation

had been removed from complainant's file because, inter alia, complainant

requested compensatory damages. For this same reason, complainant's

termination does not render his claim moot. "The Commission has long

held that where a complainant has requested compensatory damages, the

potential for said damages means that the matter cannot be dismissed as

moot until the agency has at least given the appellant the opportunity

to present evidence supporting her claim for compensatory damages and

then has either awarded the damages or has shown that the appellant

was not entitled to them." Hoffman v. Department of the Navy, EEOC

Request No. 05970962 (October 28, 1999) see also Jordan v. Department

of the Treasury, EEOC Request No. 05970426 (January 4, 1999); Huhn

v. Department of the Treasury, EEOC Request No. 05940630 (February 16,

1995); cf. Spicer v. Department of the Treasury, EEOC Request No. 05980472

(September 3, 1999).

In light of the agency's repeated failure to apply these legal standards

regarding retaliation and mootness in analyzing claims before this

Commission, the agency is advised to take note of the foregoing

authorities and to advise appropriate agency EEO personnel accordingly.

Finally, with respect to complainant's contention that the 1998

events at issue constitute part of the pattern of harassment alleged

in pending agency complaint no. 99-3052 challenging complainant's

proposed termination, the agency should consider all relevant background

evidence in investigating and issuing a decision on complainant's pending

claims.<3>

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we AFFIRM the FADs in agency

complaint nos. 95-1081/95-1081R and 99-1013.

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 (S0900)

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. If you

file a request to reconsider and also file a civil action, 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 21, 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.

2On September 4, 1999, not having yet received a report of investigation

in complaint no. 99-1013, complainant filed a notice of appeal with this

Commission to challenge the amount of time the agency had taken thus far,

as well as other aspects of the investigation. Since no FAD had been

issued, the appeal was premature, and it was administratively closed.

See Daniels v. Department of the Treasury, EEOC Appeal No. 01996725

(December 14, 2000). However, we consider in the context of the instant

appeal the arguments complainant has raised regarding the time frame and

nature of the agency investigation, to the extent it bears on the merits

of his claims. See EEOC Management Directive for 29 C.F.R. Part 1614

(EEOC MD-110) at 5-25 - 5-26 (November 9, 1999).

3Agency complaint no. 99-3052 was remanded for processing in

Daniels v. Department of the Treasury, EEOC Appeal No. 01992085 (

, 2000).