0120101035
06-24-2010
Tyrone D. Scott, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Tyrone D. Scott,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120101035
Agency No. 9Y0R09010
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated September 21, 2009, 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.
BACKGROUND
In his complaint, Complainant alleged that the Agency subjected him to
discrimination on the basis of reprisal for prior protected EEO activity
when, on January 6, 2009, an agency official wrote a biased assessment
of Complainant's 2005 Fifth Air Force History Report (2005 Report).
The Agency dismissed the complaint for failure to state a claim pursuant
to 29 C.F.R. � 1614.107(a)(1). In its FAD, the Agency reasoned that
the agency official was not in Complainant's chain of command, and his
input would not reasonably likely deter EEO activity. Complainant does
not dispute that the agency official was not in his chain of command.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the negative evaluation on the
2005 Report was used as part of the rationale for not continuing his
employment beyond his initial three year appointment period, resulting
in his termination in April 2009. Complainant appealed his termination
to the Merit Systems Protection Board (MSPB). In its MSPB pre-hearing
submissions, a copy of which complaint submits on appeal, the Agency
wrote that it expected Complainant's former supervisor to testify that he
found Complainant's work product to be unacceptable based on a personal
review of his work, peer reviews, and the Report, which led to his giving
Complainant an unacceptable performance appraisal rating and deciding not
to extend his employment beyond his initial three year appointment.
In its initial decision, the MSPB wrote that because of a negative
performance appraisal covering the period of October 1, 2007 to September
30, 2008, Complainant was ineligible to register for the priority
placement program (PPP), resulting in him not having the PPP opportunity
after his appointment expired.1 The initial decision indicates that
the performance appraisal reflected Complainant's 2005 Report did not
meet minimum standards. In finding Complainant failed to show that the
unfavorable performance appraisal was unwarranted, the MSPB's initial
decision pointed in part to the assessments of others such as in the
Report at issue.
In opposition to the appeal, the Agency argues that the matter should
be dismissed for Complainant failed to file his appeal in a timely
manner. Further, the Agency indicated that the FAD should be affirmed.
It reasons that the evaluation of the 2005 Report was not made part
of his personnel record. The Agency argues that Complainant was not
injured by the evaluation of the 2005 Report, nor would it reasonably
likely deter protected EEO activity. It argues that if the evaluation
of the 2005 Report is linked to some subsequent injury, than it would
be proper for Complainant to bring a complaint on the subsequent injury
and merge this matter therein. It notes Complainant has already done
this with his MSPB appeal on his termination.
ANALYSIS AND FINDINGS
Untimely Appeal
The Agency asserted that Complainant filed the instant appeal in an
untimely manner. We note that the Agency did show that Complainant
received the FAD on September 21, 2009.2 However, a review of the FAD
within the record provided to the Commission failed to show that the
Agency advised Complainant that he had thirty (30) calendar days after
receipt of its final decision to file his appeal with the Commission.
We note that the Agency provided a copy of the FAD which noted that
Complainant's rights were enclosed. The Agency failed to provide the
enclosures within the record. Finding no copy of the appeal rights,
we cannot find that the Agency properly advised Complainant of his right
to appeal.
Dismissal for Failure to State a Claim
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. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which there
is a remedy. Diaz v. Dept. of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
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. Lindsey v. U.S. 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.
We agree with the agency's finding that Complainant's complaint fails
to state a claim. To the extent the evaluation of the 2005 Report
contributed to Complainant receiving an unfavorable performance appraisal
or being separated, the injury occurred with the appraisal and separation.
Complainant has already filed an EEO complaint on the appraisal, and
filed an appeal with the MSPB challenging his removal. Moreover, we
find that the evaluation of the Report would not reasonably likely deter
protected EEO activity because the individual allegedly responsible for
the negative report on the historian function was not in Complainant's
chain of command.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing the
complaint pursuant to 29 C.F.R. � 1614.107(a)(1).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the
Court 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
June 24, 2010
__________________
Date
1 Scott v. Department of the Air Force, MSPB No. SF-0752-09-0417-I-1
(September 21, 2009). We note that Complainant has filed a petition for
review with the Commission which is currently pending. EEOC Petition
No. 0320100037.
2 The record indicated that Complainant filed a request for a hearing
before an EEOC Administrative Judge (AJ) on September 21, 2009.
On December 11, 2009, the AJ dismissed the matter finding that
Complainant's request was improper since the matter had been dismissed
by the Agency before Complainant made his request.
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0120101035
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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