0120110754_rev
01-05-2012
________________, Complainant, v. Mary L. Schapiro, Chairman, Securities and Exchange Commission, Agency.
________________,
Complainant,
v.
Mary L. Schapiro,
Chairman,
Securities and Exchange Commission,
Agency.
Appeal No. 0120110754
Agency No. SEC 00019-2010
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final Agency decision (FAD)
dated October 18, 2010, 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
At the time of events giving rise to this complaint, Complainant worked
as an Attorney Advisor. On September 7, 2010, he filed a formal complaint
alleging that the Agency discriminated against him based on his race/color
(Black), and reprisal for prior protected EEO activity (managements’
assumption that he sent an anonymous email to upper management regarding
lack of equal opportunities for Black employees) when on April 8, 2010,
it proposed his suspension for 30 calendar days.1
The proposal contained the right to reply to the deciding official,
and Complainant did so. On December 13, 2010, the deciding official
gave Complainant a Counseling Memorandum. Therein, he did not sustain
the proposed suspension. He found that Complainant did not intentionally
attempt to access internet websites classified by the Agency’s internet
filter as pornography, and wrote his hard drive did not have pornographic
images. The deciding official gave Complainant the Counseling Memorandum
on the grounds that his hard drive contained sexually suggestive images
not appropriate in the workplace.
The Agency dismissed the complaint, in relevant part, on the grounds that
it alleged a proposal to take a personnel action that was discriminatory.
On appeal, Complainant argues that the proposed suspension matter
states a claim because the Agency imposed the related adverse Counseling
Memorandum. He also argues that in proposing to suspend him, the Agency
violated the collective bargaining agreement (CBA).
In opposition to the appeal the Agency argues that it correctly dismissed
the proposed suspension claim under 29 C.F.R. § 1614.107(a)(5).
It argues that the Counseling Memorandum does not create a claim because
it is not discipline, will not be part of Complainant’s Official
Personnel File (OPF), and has no adverse impact on any term, condition
or privilege of employment.2 The Agency argues that proposed actions
and non-disciplinary counseling are excluded from the grievance process
under the CBA. The Agency also argues that Complainant did not make
out a prima facie case of reprisal discrimination because the proposing
official was not aware of the anonymous email.
ANALYSIS AND FINDINGS
As an initial matter, we find that Complainant does not claim he engaged
in any protected EEO activity covered by an EEO statute enforced by
the EEOC. To make such a claim, he would need to allege that he opposed
a practice made unlawful by one of the employment discrimination statutes
(opposition clause); made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, hearing or litigation under
one of the employment discrimination statutes (participation clause); or
is so closely related to or associated with the person exercising his or
her statutory rights that it would discourage or prevent him from pursing
those rights. An example of a close association is a spouse. EEOC
Compliance Manual Section 8, “Retaliation,” No. 915.003, published
by BNA, at pages EEOM 614:2 & 614:5 (May 20, 1998). Complainant does
not allege that he engaged in prior EEO activity. Rather, he contended
that someone sent an anonymous email opposing alleged discrimination,
and he felt management believed he sent it. This does not constitute EEO
activity protected by an EEO statute enforced by the EEOC. Accordingly,
Complainant’s reprisal claim is dismissed.
The party’s arguments about the CBA are inapposite. The Commission
does not have authority to enforce the CBA.
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. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
The Agency properly dismissed the claim about the proposed suspension
because this claim is about a proposal to take a personnel action.
We find that Complainant’s receipt of the Counseling Memorandum fails
to state a claim because it was not disciplinary in nature and was
not included in his OPF. See Howard v. Department of the Navy, EEOC
Appeal No. 0120111214 (June 9, 2011); Mendez v Department of the Navy,
EEOC Appeal No. 0120071056 (March 15, 2007).
Accordingly, the FAD is AFFIRMED.
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
January 5, 2012
__________________
Date
1 The Agency’s definition of the complaint included other issues, mostly
related to the proposed suspension, such as the Agency’s internet
filtering technology being ineffective and improper. The proposed
suspension was not sustained. Instead Complainant was given a Counseling
Memorandum. On appeal Complainant, who is represented by counsel, only
contests the dismissal of the suspension claim, which we find includes
the related Counseling Memorandum. Accordingly, we need not address
the other issues.
2 On appeal, the Agency submits an affidavit by the deciding official
stating that unlike Complainant, a comparison employee’s Counseling
Memorandum will remain in his OPF for one year. This supports the
Agency’s argument that the Counseling Memorandum was not placed in
Complainant’s OPF. Complainant does not contest the Agency’s
argument that the Counseling Memorandum was not placed in his OPF.
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0120110754
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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