01a02125
06-09-2000
Sherry Moran, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Sherry Moran, )
Complainant, )
)
v. ) Appeal No. 01A02125
) Agency No. DOT1001109
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
(Federal Aviation Administration), )
Agency. )
____________________________________)
DECISION
The Commission finds that the agency decision dated December 21, 1999,
which dismissed the complaint for failure to state a claim, is proper
pursuant to 64 Fed. Reg. 37,644, 37,656 (to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)).<1> In her formal EEO complaint,
complainant alleged that the agency discriminated against her in reprisal
for filing a complaint with the agency's Office of Inspector General
(OIG). In her complaint to the OIG, complainant challenged the safety
practices of the agency. The agency found that filing a complaint
with the OIG is not a protected activity and that complainant had not
participated in prior EEO activity.
According to EEOC Regulation 29 C.F.R. � 1614.101(b), an agency cannot
retaliate against an employee who opposes any practice made unlawful by
Title VII of the Civil Rights Act (Title VII) (42 USC 2000e et seq.),
the Age Discrimination in Employment Act (ADEA) (29 USC 621 et seq.),
the Equal Pay Act (29 USC 206(d)), or the Rehabilitation Act (29 USC 791
et seq.) or for participating in any stage of administrative or judicial
proceedings under those statutes. When a complaint of reprisal fails
to identify any EEO or other protected activity, the complaint is not
within the purview of Title VII and must be dismissed for failure to
state a claim. Bryant v. Department of Justice, EEOC Request No. 05980273
(June 4, 1999).
In this case, the alleged retaliation occurred after complainant
participated in the agency's administrative process, not the EEO
process. According to complainant's letter on appeal, her OIG complaint
did not allege that the agency violated the statutes which the Commission
administers. The OIG complaint only alleged that the agency violated
safety policies. Therefore, filing the OIG complaint was not protected
activity, and the present EEO complaint must be dismissed.
The agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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. 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:
June 9, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.