0120121340
05-31-2012
Floyd Baker, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency.
Floyd Baker,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Rural Development),
Agency.
Appeal No. 0120121340
Agency No. RD-2011-01017
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 9, 2012, dismissing a formal 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
During the period at issue, Complainant worked as a Secretary, GS-0318-05, at an Agency facility in St. Louis, Missouri.
On November 8, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected to harassment and a hostile work environment on the bases of sex (male) and in reprisal for prior EEO activity when:
on August 1, 2011, his former supervisor, for whom he last worked 3 to 4 years ago, informed his current supervisor that he had walked towards her in an aggressive manner as they were passing one another in a narrow hallway, and after he complained that the accusation was false, management failed to take appropriate remedial actions.
In its January 9, 2012 final decision, the Agency dismissed the instant formal complaint for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency determined that Complainant failed to show he suffered a personal loss or harm to a term, condition or privilege of his employment. The Agency further found that the alleged acts did not rise the level of harassment.
The Agency also dismissed the instant formal complaint on alternative grounds that Complainant raised the same matter in a negotiated grievance process. The Agency determined that Complainant, through the union, filed a grievance concerning the same issue on August 12, 2011, before his formal EEO complaint was filed on November 8, 2011.
ANALYSIS AND FINDINGS
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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The Agency improperly dismissed the instant formal complaint for failure to state a claim. The formal complaint and pre-complaint document identified a series of incidents that include Complainant being subjected to harassment by his former supervisor; being ostracized by fellow employees out of fear of retaliation by their supervisors; and management failing to take any actions concerning his former supervisor and other employees' false statements about his actions and performance. Moreover, on appeal, Complainant argues that he is subjected to ongoing harassment. By alleging a pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Negotiated Grievance
An Agency subject to 5 U.S.C. � 7121(d) may dismiss an EEO complaint where the matter was first raised in a negotiated grievance procedure that permits claims of discrimination to be raised. See 29 C.F.R. � 1614.107(a)(4). The collective bargaining agreement must allow employees to raise matters of alleged discrimination under the 29 C.F.R. Part 1614 EEO process or under the negotiated grievance procedure, but not both. An election to proceed under a negotiated grievance procedure is made by the filing of a written grievance irrespective of whether the Agency had informed the individual of the need to elect or whether the grievance has actually raised an issue of discrimination. See 29 C.F.R. � 1614.301(a). Complainants elect the EEO process by filing a formal EEO complaint prior to filing a timely written grievance. See id.
In the instant matter, the record does not contain a copy of the collective bargaining agreement, referenced by the Agency in its final decision, that reflects that the negotiated grievance procedure permits claims of discrimination. It is the burden of the Agency to provide evidence or proof to substantiate its final decision. See Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991).
The Agency's decision to dismiss Complainant's complaint was improper, and is REVERSED. The complaint is REMANDED to the Agency for further processing in accordance with this decision and the ORDER below.
ORDER
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
May 31, 2012
__________________
Date
2
0120121340
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121340
6
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