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).