0120091388
08-06-2010
Jean Terrill, Complainant, v. John Berry, Director, Office of Personnel Management, Agency.
Jean Terrill,
Complainant,
v.
John Berry,
Director,
Office of Personnel Management,
Agency.
Appeal No. 0120091388
Agency No. 2009005
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 5, 2009, dismissing her 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 and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621. For the following reasons, the Commission REVERSES the Agency's decision and REMANDS the complaint for processing.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed for failure to state a claim Complainant's formal EEO complaint of discrimination based on race (White, association with African Americans), sex (female), and age (51), wherein Complainant alleges that on August 18, 2008, her Detail Supervisor sent an email to Complainant's immediate supervisor, along with two other individuals at Complainant's home agency.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed as a Financial Systems Specialist, GS-501-13, at the Agency's Arlington, Virginia facility. On September 29, 2008, Complainant requested pre-complaint processing. She was sent a "Notice of Right to File an Individual Complaint" on November 4, 2008, and filed a formal EEO complaint with the Agency on November 23, 2008, alleging that she was discriminated against as set forth in the above-entitled statement, "Issue Presented."
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Specifically, the Agency found that Complainant failed to establish that the Agency subjected her to personal loss or harm sufficient to render her aggrieved. Dismissal Decision, at Page 2. The Agency argued that the record was devoid of any evidence that the Agency initiated adverse action against Complainant, thus Complainant's allegations failed to state a claim under the EEO statutes. Id.
Neither Complainant nor the Agency raises any contentions on appeal.
ANALYSIS and FINDINGS
Here, Complainant alleged that the email message that was sent by her Detail Supervisor contained false allegations which damaged her reputation within her home agency. Complainant alleges that as a result of receiving the email, she was told by representatives at her home agency that she would not be placed on the home agency's "Priority Placement List" until the email was investigated and resolved, because the email contained alleged misconduct issues. See EEO Counselor's Report, Page 4.
The Commission has previously held that damage to a complainant's reputation may be sufficient to invoke the protections of the EEO process. Gamboa v. United States Postal Service, EEOC Appeal No. 05890633 (Aug. 31, 1989). However, the viability of such claims must be decided on a case-by-case basis because "whether an employee is aggrieved in cases involving alleged intangible harm depends on the facts and circumstances of each particular case." Mercad, EEOC Appeal No. 01956162 (Apr. 9, 1996) (citing Simmons v. United States Postal Service, EEOC Appeal No. 01940750 (October 4, 1994), request to reconsider den'd, EEOC Request No. 05950072 (June 22, 1995). Here, the Commission finds that Complainant has demonstrated that she was aggrieved by her Detail Supervisor's email because the record reflects that, as a result of the Detail Supervisor's email, Complaint's home agency deemed Complainant ineligible for a placement in the Priority Placement Program pending an investigation. See EEO Counselor's Report, Page 6. The record reflects that that decision was made to prohibit Complainant from being placed in the Priority Placement Program as a result of management's perception that Complainant's reputation was tarnished as a result of the Detail Supervisor's email. Id.
Upon review, the Commission finds that the complaint states a claim under the EEOC regulations, and was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1). 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. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). As a result of being ineligible for a placement in the "Priority Placement Program", Complainant may have suffered some loss with respect to a term, condition, or privilege of employment, and been entitled to relief. Id. We find that the record must be developed further regarding the details surrounding the Detail Supervisor's decision to send the email, as well as the result of the investigation at Complainant's home agency.
CONCLUSION
Accordingly the Agency's final decision dismissing Complainant's formal complaint for failure to state a claim is REVERSED and the complaint is REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0408)
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
August 6, 2010
Date
2
0120091388
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091388