01a61224
05-09-2006
Ira W. Blue, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Ira W. Blue v. Department of the Navy
01A61224
May 9, 2006
.
Ira W. Blue,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A61224
Agency No. DON 05-65886-01840
DECISION
Complainant filed an appeal with this Commission from a final agency
decision, dated November 1, 2005, pertaining to his formal EEO 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 Commission accepts the appeal in accordance with 29 C.F.R. �
1614.405.
On July 11, 2005, complainant initiated contact with an agency EEO office
claiming that he was the victim of unlawful employment discrimination
in reprisal for prior protected activity. Informal efforts to resolve
complainant's concerns were unsuccessful.
On September 14, 2005, complainant filed formal complaint. Complainant's
complaint was comprised of the following eight claims:
(a) on an unspecified date, the former Equal Employment Opportunity
(EEO) Officer failed to follow equal pay and compensation regulations
and guidance in regard to the work that complainant performed in his
position as an Engineering Technician, GS-0802-11 in Code 6.3.1.
(b) On an unspecified date, the former EEO Officer and unspecified
management officials involuntarily transferred him into another
Engineering Technician, GS-0802-11 position within Code 6.0.
(c) On an unspecified date, the former EEO Officer, Senior Legal Counsel
and senior management officials failed to investigate his claims of
abuses of authority, illegal violations of laws, rules and regulations.
(d) On an unspecified date, the former EEO Officer, Senior Legal Counsel
and senior management officials took personnel action against him for
reporting criminal activities, poor management decisions, violations
of ethical standards and/or law, rules, regulations including but not
limited to fraud, waste and abuse of authority.
(e) On an unspecified date, the EEO Officer, Senior Legal Counsel and
senior management officials limited and restricted his requests to work
credit hours and denied his requests for a desk audit, a consistency
review and an investigation into criminal acts.
(f) On October 1, 2003, the EEO Officer, Senior Legal Counsel and senior
management officials failed to follow laws, rules and regulations.
(g) On an unspecified date, the EEO Officer and unspecified management
officials permitted, accepted and covered up criminal activities relating
to his former first level supervisor and a confrontation between the
two of them.
(h) On an unspecified date, the EEO Officer, Senior Legal Counsel
and senior managers failed to provide �documentable� evidence for denial
and limitation on his FOIA [Freedom of Information Act ] requests.
On November 1, 2005, the agency issued a final decision, dismissing the
complaint on several grounds. Specifically, the agency claims (a),
(b), (e) and (g) for stating the same claim that is pending before or
has been decided by the agency. The agency also dismissed claims (b),
(c), (d), (e), (g) and (h) for failure to state a claim. The agency
dismissed claim (f) on the grounds of untimely EEO Counselor contact.
The agency also dismissed the entire complaint was dismissed for abuse
of process, pursuant to 29 C.F.R. � 1614.107(a)(9).
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).
Regarding claim (b), complainant contends he was transferred to
another program. In finding that complainant failed to state a claim,
the agency noted that he was reassigned to a position of the same title,
series and grade in the same department. According to the agency,
complainant did not experience a significant change of duties, pay or
benefits. Complainant has failed to show that the transferred resulted
in a personal loss or harm regarding a term, condition or privilege of
his employment. Therefore we find that claim (b) was properly dismissed
for failure to state a claim.
In claims (c), (d) and (g), the Commission agrees with the agency that
complainant has failed to provide sufficient specificity to state a claim
of discrimination. Complainant has not established how the vaguely
described events, i.e. failure to investigate allegations of abuse,
personnel actions taken in reprisal for reporting behavior, covering
up criminal activities, impacted a term, condition or privilege of
his employment. The Commission finds that the dismissal of claims (c),
(d) and (g) for failure to state a claim was proper.
However, with regard to claim (e), complainant claimed that agency
officials limited and restricted complainant's requests to work credit
hours and his requests for a desk audit were denied. We find that
claim (e) is sufficient to render complainant an �aggrieved� employee.
Because he has alleged that the adverse action was based on reprisal,
he raised a claim within the purview of the EEOC regulations. Therefore,
the Commission finds that the agency improperly dismissed claim (e).
Finally, in regard to claim (h), complainant claimed that agency
officials failed to provide evidence with respect to the denial of his
FOIA request. The EEOC 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. The Commission has held that it does not have
jurisdiction over the processing of FOIA requests. Instead, individuals
with a dispute over such requests should bring any appeals about the
processing of their FOIA requests under the appropriate FOIA regulations.
See Gaines v. Department of the Navy, EEOC Request No. 05970368 (June
12, 1997).
Stating the same claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
The agency dismissed claims (a) and (e) pursuant to 29 C.F.R. �
1614.107(a)(1). However, the agency did not provide any documentation
regarding the previously filed complaints that were identified by
the agency (Case Nos. DON 04-65886-10087, DON 05-65886-00101, and DON
04-65886-04378). The Commission determines that the agency's dismissal
of claims is unsupported by the record. Clearly, it is the burden of
the agency to have evidence or proof to support its final decision.
See Marshall v. Department of the Navy, EEOC Request No. 05910685
(September 6, 1991). Consequently, we find that the agency's dismissal
of claims (a) and (e) on the grounds that they address the same claims
that were raised in a prior complaint was improper.
Because we determine that the agency properly dismissed claims (b) and (g)
for failure to state a claim, as discussed above, we find it unnecessary
to address the agency's dismissal of claims (b) and (g) on these grounds.
Untimely Counselor Contact
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The record indicates that complainant contacted the EEO office on July
11, 2005 regarding an event that allegedly occurred on October 1, 2003.
Complainant's contact was almost two years beyond the forty-five day
time limitation. Complainant has not provided sufficient justification
for extending the time limit. Therefore, claim (f) was properly dismissed
on the grounds of untimely EEO Counselor contact.
Abuse of Process
EEOC Regulations provide that a complainant be dismissed where the agency
finds that the complaint is part of a clear pattern of misuse of the
EEO process for a purpose other than the prevention and elimination
of employment discrimination. See 29 C.F.R. � 1614.107(a)(9). The
regulations allow for a finding of abuse of process is there is:
(1) evidence of multiple complaint filings; and (2) allegations that
are similar or identical, lack specificity of involve maters previously
resolved; or (3) evidence of circumventing other administrative processes,
retaliating against the agency's in-house administrative processes or
overburdening the EEO complaint system. Id. However, the circumstances
where such standards are applicable must be rare, due to the strong policy
in favor of preserving a complainant's EEO rights whenever possible. EEO
Management Directive 110 (MD-110), 5-17 (November 9, 1999) (citing Love
v. Pullman, 404 U.S. 522 (1972); Wrenn v. Equal Employment Opportunity
Commission, EEOC Appeal No 01932105 (1993)).
Here, the agency contends that complainant is misusing the EEO process by
presenting matters that were previously raised. The agency determined
that complainant told the EEO Counselor that he knew the �EEO process
was not the appropriate avenue� for his claims, but that �they can do the
paperwork.� Complainant purportedly explained to the EEO Counselor that
he was filing the claims in the EEO process so they would be heard in
some forum. The Commission finds, however, that the agency's dismissal
of the complaint for abuse of process was improper. As noted above,
abuse of process is only found in exceptional circumstances where there
is a clear misuse or abuse of the administrative process. Such misuse
is not evident here. As noted above, although the agency claims that
many of the claims were raised in prior complaints, there is no evidence
in the record to support this assertion. With respect to complainant's
alleged statements to the EEO Counselor, we do not find that they rise
to the level of abuse of process. In his appeal statement, complainant
reiterates his belief that he has been subjected to reprisal and unfair
treatment in violation of the EEO laws.
CONCLUSION
Accordingly, the agency's decision to dismiss the entire complaint on
the grounds of abuse of process is REVERSED. The agency's agency's
decision to dismiss claims (a) and (e) was improper, and is hereby
REVERSED. Claims (a) and (e) are REMANDED to the agency for further
processing in accordance with this decision and the Order below.
The agency's decision to dismiss claims (b), (c), (d), (f), (g), and
(h) was proper and is AFFIRMED.
ORDER (E0900)
The agency is ordered to process the remanded claims (claims (a) and (e))
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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
May 9, 2006
__________________
Date