0120073621
12-04-2007
Ozell Barrett, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Ozell Barrett,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 0120073621
Agency No. DLAN-07-0572
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated July 10, 2007, 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.
On June 5, 2007, complainant filed a formal EEO complaint. Therein,
he alleged that he was subjected to discrimination on the bases of race
and in reprisal for prior protected EEO activity.
In its final decision, dated July 10, 2007, the agency determined that
complainant's complaint was comprised of the following three claims:
(A) On April 26, 2007, [complainant] learned that management failed
to correct [his] time and attendance record to reflect a credit of 16
hours of annual leave;
(B) On May 9, 2007, management ordered [complainant] to leave the break
room after a meeting.
(C) On May 29, 2007, [complainant was] not considered for an opportunity
to work on the graveyard shift.
The agency dismissed complainant's complaint. The agency dismissed
claims (A) and (B) for failure to state a claim. Regarding claim
(A), the agency stated that "[a] review of [complainant's] time and
attendance records indicate that pay period ending March 17, 2007,
[reflects] a credit of 16 hours of annual leave." Regarding claim (B),
the agency stated that complainant failed to show a harm or loss with
respect to a term, condition, or privilege of his employment. The agency
dismissed claim (C) on the grounds that the Commission has previously
decided the same claim.
In opposition to complainant's appeal, the agency requests that we affirm
its final decision. Regarding claim (C), denial of the opportunity to
work the graveyard shift, the agency stated that "[i]n a case filed in
2005 (Barrett v. Department of Defense, EEOC Hearing No. 310-2005-00476X),
[complainant] alleged...that he was discriminated against when he was
denied the opportunity to work the graveyard shift. In that case,
the Administrative Judge [found]...following a full hearing, [that
complainant] was not discriminated against regarding opportunities
to work the graveyard shift, as [complainant] lacked the security
clearance necessary to work that shift. The agency implemented the
Administrative Judge's decision, and complainant appealed, [Barrett
v. Department of Defense, EEOC Appeal No. 0120062931 (March 23,
2007)]...OFO affirmed the final agency decision and [complainant] filed a
request for reconsideration. On May 25, 2007, OFO upheld its original
decision,...denying complainant's request, [Barrett v. Department
of Defense, EEOC Request No. 0520070494]. The agency asserts that
complainant should be also be precluded from raising claim (C) under
the doctrine of res judicata.
Claim (A)-Annual Leave
While the agency dismissed claim (A) for failure to state a claim, we
find that this claim is more properly analyzed as to whether it has been
rendered moot. The regulation set forth at 29 C.F.R. � 1614.107(a)(5)
provides for the dismissal of a complaint when the issues raised therein
are moot. To determine whether the issues raised in complainant's
complaint are moot, the factfinder must ascertain whether (1) it can
be said with assurance that there is no reasonable expectation that
the alleged violation will recur; and (2) interim relief or events
have completely and irrevocably eradicated the effects of the alleged
discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July
10, 1998). When such circumstances exist, no relief is available and
no need for a determination of the rights of the parties is presented.
While the agency asserts that complainant was credited 16 hours of annual
leave, complainant states, on appeal, that "the agency allegedly made a
correction to the time and attendance records but this fact is in dispute.
The records of the complainant (pay record received each pay period) do
not show the leave was returned to complainant." The record contains a
declaration under penalty of perjury from an agency supervisor (S1).
Therein, S1 stated that he requested that the leave be credited.
Specifically, S1 stated that "[u]pon becoming aware of the error,
I submitted a corrected ATAAPS log, which was signed by both me and
[complainant] on March 9, 2007. The corrected log was submitted so
that [complainant] would be credited with the 16 hours of annual leave
that was mistakenly deducted for the pay period ending March 3, 2007."
The record also contains a time and attendance log for complainant.
However, we are unable to ascertain from the record whether complainant
was actually credited the 16 hours of annual leave.
We further note that complainant, in his formal complaint, requested
compensatory damages. Because complainant requested compensatory damages,
the agency should have requested that complainant provide some objective
proof of the alleged damages incurred, as well as objective evidence
linking those damages to the adverse actions at issue. See Allen
v. United States Postal Service, EEOC Request No. 05970672 (June 12,
1998); Benton v. Department of Defense, EEOC Appeal No. 01932422 (December
3, 1993). As the agency failed to address the issue of compensatory
damages, we find that dismissal on the grounds that it was rendered
moot was improper. See Rouston v. National Aeronautics and Space
Administration, EEOC Request No. 05970388 (March 18, 1999). Based on
the foregoing, we find that claim (A) has not been rendered moot.
Claim (B)- Order to Leave Break Room/Building
With respect to the basis of race, we find that the agency properly
dismissed claim (B). 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). In the instant matter,
we find that complainant has not shown a harm or loss with respect to a
term, condition, or privilege of employment. In addition, we find that
the alleged incident is not sufficiently severe or pervasive to state an
actionable claim of harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
With respect to the basis of reprisal, we find that the agency improperly
dismissed claim (B). Regarding complainant's claim of reprisal, the
Commission has stated that adverse actions need not qualify as "ultimate
employment actions" or materially affect the terms and conditions of
employment to constitute retaliation. Lindsey v. United States Postal
Service, EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance
Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation
clauses prohibit any adverse treatment that is based upon a retaliatory
motive and is reasonably likely to deter the charging party or others
from engaging in protected activity. Id. Complainant on appeal states
that "[this action] was done to show employees what will happen if you
file an EEO complaint...The complainant uses an office in 506 to work EEO
complaints for union members that the complainant represents." Based on
the foregoing, we find that the alleged incident set forth in claim (B)
is reasonably likely to deter complainant or others from engaging in
the EEO process.
Claim (C)-Denial of Work on the Graveyard Shift
The Commission finds that the agency improperly dismissed claim
(C). 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.
It has long been established that "identical" does not mean "similar."
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident, and parties.
See Jackson v. Department of the Air Force, EEOC Appeal No 01955890
(April 5, 1996) rev'd on other grounds EEOC Request No. 05960524 (April
24, 1997).
While we note that the Commission in EEOC Appeal No. 0120062931 and EEOC
Request No. 0520070494 addressed the following claim: On September 22,
2004, complainant received notice that his work shift was changed from
11:00 p.m. to 7:30 a.m., the graveyard shift, to 7:00 a.m. to 3:30 p.m.,
the day shift, we find that claim (C) is not identical to complainant's
prior claim. The instant claim concerns complainant's assertion that
he was not given an opportunity to work the graveyard shift in May 2007,
after management sent a roster around asking for volunteers and that he
volunteered, but was not considered. Complainant also asserts that the
supervisor in the instant claim is different than in his prior claim.
Regarding the agency's assertion that a security clearance is still
required to work the graveyard shift, and that complainant does not have
his clearance, we find that this goes to the merits of complainant's
complaint, and is irrelevant to the procedural issue of whether she has
stated a justiciable claim. See Osborne v. Department of the Treasury,
EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal
Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United
States Postal Service, EEOC Request No. 05910642 (August 15, 1991).
Accordingly, we AFFIRM the agency's final decision dismissing claim (B)
on the basis of race. However, we REVERSE the agency's final decision
dismissing claims (A), (B) on the basis of reprisal, and (C), and we
REMAND these matters to the agency for further processing in accordance
with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims (Claims (A), (B)
(on the basis of reprisal only), and (C)) 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
December 4, 2007
__________________
Date
2
0120073621
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120073621