0120111365
06-16-2011
Erik J. Saracino,
Complainant,
v.
Gregory B. Jaczko,
Chairman,
Nuclear Regulatory Commission,
Agency.
Appeal No. 0120111365
Agency No. NRC-11-03
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated November 30, 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
At the time of events giving rise to this complaint, Complainant was
a former Special Agent with the Agency. Complainant had applied for
a position with the National Aeronautics and Space Administration
(NASA). Complainant indicated that he was selected for the position
pending a background investigation and security clearance. Complainant
learned that management with the Agency had provided negative information
on Complainant to NASA. Complainant believed that management made the
false and derogatory statements in retaliation for his prior EEO activity.
On November 5, 2010, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination on the basis of reprisal
for prior protected EEO activity under Title VII of the Civil Rights
Act of 1964 when, on September 29, 2010, Complainant learned that the
adjudication of his security clearance for NASA was held in abeyance
pending clarification of statements made by management officials with
the Agency regarding "Financial Consideration Concerns."
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1)
for failure to state a claim. The Agency indicated that Complainant
alleged discrimination with respect to
statements provided to NASA pursuant to a security clearance
determination. The Agency asserted that EEOC does not have jurisdiction
over security clearance determinations. Therefore, the Agency concluded
that Complainant’s claims regarding the statements provided pursuant
to a security clearance investigation are similarly outside of the
Commission’s jurisdiction. As such, the Agency dismissed the complaint.
Complainant appealed, requesting that the Commission reverse the
Agency’s decision. The Agency responded to the appeal arguing that
the Commission affirm its dismissal. The Agency also asserted that the
Commission should not review the Agency’s dismissal decision because
it claimed Complainant has requested that an EEOC Administrative Judge
(AJ) amend his pending hearing to include the instant matter.
ANALYSIS AND FINDINGS
As an initial matter, the Commission notes that the Agency dismissed the
complaint at hand. Therefore, the regulations provide Complainant with
appeal rights to the Commission, not the AJ. Accordingly, we find that
Complainant properly appealed the Agency’s final decision to the EEOC.
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).
Upon review of the record, we find that Complainant alleged discrimination
when the Agency’s management provided Complainant with a negative
reference. As a result of the negative reference, Complainant indicated
that NASA held his security clearance decision in abeyance. We note
that Complainant has not alleged discrimination with regard to NASA’s
security clearance determination, but rather to the statements provided
by the Agency’s management officials. As such, we determine that
Complainant is alleging that the Agency retaliated against him for his
prior EEO activity (engaged in while he still was an employee of the
Agency) by providing NASA with a negative reference in his application
for a non-Agency position.
A former employee may state a viable retaliation claim for protected
activity that arose from his or her employment with the agency even if the
disputed agency action occurred after the termination of the employment
relationship. In Robinson v. Shell Oil Co., 519 U.S. 337 (1997), a
case involving a claim of retaliation when a former employer gave an
employee a negative job reference, the Supreme Court clarified that the
term “employee” as used in the anti-retaliation provision of Title
VII, includes former employees. See also Doyle v. Dep’t of Justice,
EEOC Request No. 0520070207 (October 12, 2007) (complainant stated a
viable claim of retaliation when, as a former employee who had engaged
in protected EEO activity, he was not selected for a contract position
with the agency after his retirement); Machlin v. United States Postal
Service, EEOC Appeal No. 0120070788 (March 29, 2007) (complainant stated a
viable claim of retaliation when, as a former employee who had engaged in
protected EEO activity, he was not selected for a contract position with
the agency); Bimes v. Department of Defense, EEOC Appeal No. 01990373
(April 13, 1999) (allegation of retaliation involving agency's refusal
to provide a former employee with post-employment letters of reference
states a viable claim).
In light of the particular circumstances in this case, we find that
Complainant has presented a cognizable claim of unlawful retaliation.
Accordingly, we determine that the Agency’s dismissal was not
appropriate.
CONCLUSION
The Agency's final decision dismissing Complainant's complaint for failure
to state a claim is VACATED. The complaint is REMANDED to the Agency for
further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The Agency shall issue
to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the Complainant requests a
final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File A Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission. 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.
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 16, 2011
__________________
Date
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0120111365
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111365