0120142920
01-30-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120142920
Agency No. 200I06192014102721
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 14, 2014, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Vocational Rehabilitation Specialist at the Agency's Central Alabama Veterans Healthcare System facility in Tuskegee, Alabama.
On April 24, 2014, Complainant contacted the EEO Counselor. He asserted that he was subjected to discrimination on the basis of his prior EEO activity when, on March 31, 2014, he was informed that his position with the Agency was to be terminated on September 30, 2014. Complainant asserted that he has been in the position since 2011, and that the position was to last four years. As such, he believed he had seven months left before his position would be terminated. He also noted that he had not been converted to a permanent position like his peers. Complainant indicated that he spoke to the Chief who told him he should apply for Housekeeper positions.
When the matter could not be resolved, Complainant was issued a notice of right to file a formal complaint. On May 29, 2014, Complainant filed a formal complaint. We note that Complainant signed the formal complaint along with a form from the EEO Counselor that defined his claim of discrimination on the basis of reprisal when he was not promoted. Complainant did not otherwise provide a statement of his claim of discrimination.
The Agency defined Complainant's claim of discrimination as: whether Complainant was discriminated against based on reprisal (prior EEO activity) when, on April 18, 2014, he was notified that his temporary appointment as a Vocational Rehabilitation Specialist, GS-5, would be terminated effective September 30, 2014, and was informed that if he wanted a permanent position, he would have to apply for one. The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency noted that the Chief informed Complainant that the pilot program including his temporary position was going to be discontinued. As such, she suggested that he apply for other positions within the Agency. The Agency noted that Complainant and others had their positions abolished with the pilot program being discontinued. The Agency noted that no action had been taken nor will be taken until September 30, 2014. As such, the only event that occurred was that the Chief told Complainant to apply for another position. The Agency found that this statement alone did not render him aggrieved. Therefore, the Agency dismissed the complaint.
Complainant appealed. Attached to his appeal statement, Complainant included a copy of a vacancy announcement, namely Job Announcement No. JV-14-DD-1099674, for three Vocational Rehabilitation Specialist positions with the Agency located in Decatur, Georgia. The posting was open from April 22, 2014 to May 12, 2014. The Agency asserted that Complainant had not shown that he was harmed in that, at the time he filed his formal complaint, the pilot program had not been terminated. As such, the Agency indicted that the termination of the pilot program was a proposed action. Accordingly, the Agency requested that we affirm the dismissal decision.
ANALYSIS AND FINDINGS
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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
We note that Complainant alleged discrimination on the basis of reprisal. 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.
Upon review of the record, we find that Complainant has not stated a claim. At the time he alleged he was subjected to discrimination, he was only informed that the pilot program was coming to an end and all Vocational Rehabilitation Specialist positions were to be abolished effective September 30, 2014. Complainant filed his complaint in May 2014, before any such action had occurred. Further, Complainant has not indicated that he has applied for a position since he was informed of the abolishment of his position. Finally, as to the job announcement for the position in Decatur, Georgia, the Commission does not understand the relevance of the document as to Complainant's position in the Agency's facility in Tuskegee, Alabama. Based on the record, we find that Complainant has not shown that when he was told by the Chief that his position would be terminated that he was subjected to an Agency action. Further, Complainant has not shown that being provided with this information was reasonably likely to deter the charging party or others from engaging in protected activity. Accordingly, we determine that the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim was appropriate.
We note that the record including the complaint file provided by the Agency and Complainant's statement in support of his appeal do not indicate whether his position was terminated or not on September 30, 2014. If in fact Complainant's position was terminated on September 30, 2014, Complainant will have thirty (30) calendar days from the date this decision becomes final to contact the EEO Counselor to file a new complaint to address the actual termination.
CONCLUSION
Therefore, we AFFIRM the Agency's final decision.
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 30, 2015
__________________
Date
2
0120142920
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120142920