0120100489
05-03-2010
Larry R. Pope, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Larry R. Pope,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120100489
Agency No. 096110901347
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 8, 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.
At the time of the events at issue, complainant was employed by the
agency as a civilian police officer at the Naval District Washington.
In his EEO complaint, complainant alleged that he was subjected to
discrimination on the bases of race (African American) and reprisal for
prior protected EEO activity when:
1. On March 11, 2009, complainant received a Letter of Caution;
2. Complainant was denied official time to prepare his complaint;
3. In April 2009, complainant did not receive an appreciation award;
4. Complainant's performance evaluation was sent to Human Resources to
prepare a negative evaluation, thus creating hostile work environment;
5. Despite medical restrictions limiting him to just nine hours a day,
complainant was told that could be subject to disciplinary action if he
did not work more than nine hours a day;
6. On April 3, 2009, complainant received a letter directing him to use
the chain of command to remedy issues;
7. On April 15, 2009, complainant's request for an altered limited work
schedule was denied;
8. Complainant was not provided a CA1 Form to document an injury he
received while on duty on April 23, 2009; and
9.
10. A management official has a private file containing complainant's
medical records.
The agency dismissed the claims for failure to state a claim, finding
that complainant was not harmed by the agency's actions. The instant
appeal followed.
As an initial matter, the Commission finds that agency improperly
treated complainant's allegations in a piecemeal manner, examining each
allegation separately when applying its failure to state a claim analysis.
See Meaney v. Department of the Treasury, EEOC Request No. 05940169
(November 3, 1994) (an agency should not ignore the "pattern aspect"
of a complainant's claims and define the issues in a piecemeal manner
where an analogous theme unites the matter complained of). However,
a fair reading of the formal complaint, and supporting documents,
shows that the events described by complainant were intended to be part
of a broader hostile work environment claim. When examined together,
complainant's allegations state a claim of ongoing harassment that had the
purpose or effect of unreasonably interfering with his work performance
and/or creating an intimidating, hostile, or offensive work environment.
See McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982).
Additionally, the Commission has a policy of considering reprisal claims
with a broad view of coverage. See Carroll v. Department of the Army,
EEOC Request No. 05970939 (April 4, 2000). Under Commission policy,
claimed retaliatory actions that can be challenged are not restricted
to those which affect a term, condition, or privilege of employment. See
Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006);
EEOC Compliance Manual Section 8, "Retaliation;" No. 915.003 (May 20,
1998), at 8-15. Rather, a complainant is protected from any discrimination
that is reasonably likely to deter protected EEO activity. See id.
We also note with regard to allegation 2 that the Commission has stated
that an allegation pertaining to the denial of official time states a
separately processable claim alleging a violation of the Commission's
regulations, without requiring a determination of whether the action
was motivated by discrimination. See Edwards v. U.S. Postal Service,
EEOC Request No. 05960179 (December 23, 1996). While the agency argues
on appeal that complainant was provided one hour of official time and
that this was sufficient, such an allegation goes to the merits of the
claim, which is only appropriate after the issue has been investigated.
Finally, with regard to allegation 9, we construe complainant to be
claiming that his medical information was not kept confidential, contrary
to 29 C.F.R. � 1630.14, which requires agencies to keep such information
confidential. See Enforcement Guidance on Disability Related Inquiries
and Medical Examinations of Medical Employees Under Americans With
Disabilities Act (Guidance) (July 26, 2000). Complainant's allegation
that the agency failed to do this, therefore, states a cognizable claim
that must be investigated.
Accordingly, the agency's final decision dismissing the complaint is
REVERSED and the complaint is REMANDED pursuant to the following Order.
ORDER (E0900)
The agency is ordered to process the remanded claims (hostile work
environment, official time claim and unlawful medical disclosure)
in accordance with 29 C.F.R. � 1614.108 et seq. 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 (K1208)
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 (M1208)
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 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 (R0408)
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 (Z1008)
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 3, 2010
__________________
Date
2
0120100489
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100489