01a32255
03-05-2004
Allan Harris, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Allan Harris v. Department of Energy
01A32255
3/5/04
.
Allan Harris,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A32255
Agency No. 02(28)OH
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning 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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Environmental Engineer at the agency's Cincinnati, Ohio facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on December 15, 2001, alleging that he was discriminated
against on the basis of reprisal for prior EEO activity when he received
a lowered performance appraisal.
In his formal complaint, complainant also alleged that he has been
continually harassed since 1994 due to an EEO complaint he filed in 1992
against the Richland, Washington Field Office. Specifically, complainant
contends that he was harassed when he was denied a permanent assignment
in his area of expertise, when he failed to receive all minutes and
correspondence, and when the agency eliminated a Project Manager position
so that complainant would not be selected for the position.
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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
On February 21, 2002, the agency issued complainant a �Notice of
Acceptance/Dismissal of Formal complaint of Discrimination.� Therein, the
agency advised complainant that the only issue accepted for investigation
was his claim regarding his performance appraisal for the year 2001.
Complainant's remaining claims were dismissed for untimeliness and for
being moot.
Following an investigation regarding complainant's performance appraisal
claim, the agency issued a final decision finding complainant had not been
discriminated against. In its January 14, 2003 FAD, the agency concluded
that complainant failed to establish an inference of discrimination
because he failed to establish that the agency was aware of his prior
EEO activity. Furthermore, the agency concluded complainant failed to
establish he was subjected to an adverse action. Assuming complainant
did establish a prima facie case, the agency found that the remarks in
complainant's performance appraisal were made in an effort to provide
constructive criticism and an opportunity to improve in future ratings.
On appeal, complainant contends that the agency mis-defined his complaint
and that he never alleged discrimination because of a lower rating.
The agency requests that we affirm its FAD.
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
a prima facie case of retaliation because he failed to establish any
causal connection between his prior EEO activity and performance rating.
Complainant failed to establish that any management official was aware of
any prior EEO activity. In reaching this conclusion, we note that we are
not even persuaded that complainant has engaged in any protected activity
as he has not supplied a copy of his complaint, agency complaint number,
or any other evidence of any previous protected activity. Having said
that, assuming complainant has engaged in protected activity, we find
the agency articulated legitimate, nondiscriminatory reasons for the
statements made in complainant's performance appraisal. Complainant
presented no evidence of pretext.
As for complainant's remaining claims, we agree with the agency's decision
to dismiss these allegation for untimeliness and because they do not state
a claim. See 29 C.F.R. � 1614.107(a)(1); 29 C.F.R. � 1614.107(a)(2).
We disagree with complainant's contention that the agency mis-defined
his complaint. Rather, we find the agency investigated the proper issue
which was the only allegation not subject to dismissal.
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 FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
3/5/04
Date