01a53567
09-26-2005
Thomas R. Johnson, Complainant, v. Michael L. Dominguez, Acting Secretary, Department of the Air Force, Agency.
Thomas R. Johnson v. Department of the Air Force
01A53567
9/26/2005
.
Thomas R. Johnson,
Complainant,
v.
Michael L. Dominguez,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A53567
Agency No. 4O1C05003
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated March 22, 2005, dismissing 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
On January 18, 2005, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful. In the
instant formal complaint, filed on February 14, 2005, complainant
claimed that he was subjected to discrimination on the bases of age and
in reprisal for prior protected activity.
In its final decision, dated March 22, 2005, the agency dismissed
complainant's complaint. The agency dismissed the basis of reprisal.
Specifically, the agency asserted that �your claim of reprisal is based
upon your perception that you were mistreated due to your participation
in a labor arbitration. Labor arbitrations are union activities and
are not considered EEO activities under the law.�
The agency dismissed complainant's claim of age discrimination on the
grounds of untimely EEO Counselor contact. Specifically, the agency
found that complainant's claims of age discrimination involve actions that
occurred in December 2003. The agency further asserted that complainant
previously filed an EEO complaint on these matters in 2004, and that
they were dismissed due to �a lack of timeliness.�
As a threshold matter, the Commission notes that in its final decision,
the agency did not identify complainant's claims. Upon review of the
entire record, we find that complainant claims that he is being subjected
to a hostile work environment based on age and in reprisal for prior
protected activity. In Pre-Complaint Counselor's Notes dated March
14, 2005, complainant claims that he was being retaliated �against for
filing a union grievance, harassment, age, and hostile work environment.
He was notified on [January 11, 2005] that he would be detailed to
another section effective [January 12, 2005] due to a complaint of
insubordination.� In his formal complaint, complainant stated that
�[t]his entire situation began with a very biased selection process that
was based on age discrimination, and ended up with a department within
[the agency] having a very hostile work environment.� Complainant
asserted that he was not selected for the position of Vehicle Maintenance
Manager, and that a younger individual was selected. Complainant further
asserted that his position was downgraded. Complainant stated that
these issues eventually went to arbitration. Complainant asserted
that subsequent to the arbitration, he was called into two closed door
meetings by management and was accused of insubordination. Finally,
complainant asserted that since these meetings, he has been detailed to
another position.
On appeal, complainant asserts that the hostile work environment is
continuing. Specifically, he states that he was discriminated against
when he received a performance appraisal on May 3, 2005.
Basis of Reprisal
We find that the agency improperly dismissed the basis of reprisal. The
Commission acknowledges that complainant appears to be claiming reprisal
due to participation in a labor arbitration proceeding. We note that if
complainant opposed discrimination or raised the issue of discrimination
in the grievance process, such action would constitute prior protected
activity for EEO purposes. However, the record does not contain a copy
of complainant's grievance or any documentation regarding the arbitration
proceeding.
Nevertheless, the record reflects that complainant has engaged in prior
EEO activity. Specifically, in an undated document entitled �Statement
of Events,� complainant stated that prior to the instant complaint he
�contacted the [EEO] representative [at the agency], and was told the
time lines had been exhausted and there was nothing they could do.�
In addition, the agency in its final decision asserts that complainant
filed an EEO complaint in 2004. Based on the foregoing, we find that
the agency improperly dismissed the basis of reprisal.
Dismissal on the grounds of Untimely EEO Counselor Contact
The Commission finds that the agency improperly dismissed complainant's
complaint on the grounds of untimely EEO Counselor contact. W note that
complainant in his formal complaint listed the alleged incident dates as
�age discrimination [December 21, 2003], reprisal [January 11, 2005];�
however, as discussed above, we find that a fair reading of the entire
record reflects that complainant claims that he is being subjected to
an on-going hostile work environment based on age and in reprisal for
prior protected activity. We note that at least one of the incidents
comprising complainant's hostile work environment claim occurred within
the forty-five-day period preceding complainant's initial EEO Counselor
contact on January 18, 2005. Specifically, the record reflects that
complainant claimed that he was detailed to another position effective
January 12, 2005, and that this agency action is part of his hostile work
environment claim. The Commission finds that �[b]ecause the incidents
that make up a hostile work environment claim collectively constitute one
unlawful employment practice, the entire claim is actionable, as long,
as at least one incident that is part of the claim occurred within the
filing period. This includes incidents that occurred outside the filing
period that the [complainant] knew or should have known were actionable
at the time of their occurrence.� EEOC Compliance Manual, Section
2, Threshold Issues at 2-75 (revised July 21, 2005) (citing National
Railroad Passenger Corp. v. Morgan 536 U.S. 101, 117 (2002)). Based on
the foregoing, we find that the agency improperly dismissed complainant's
hostile work environment claim for untimely EEO Counselor contact.
The Commission acknowledges that the agency asserts in its final decision
that complainant previously filed an EEO complaint on these issues,
in 2004. However, the record does not contain a copy of this prior EEO
complaint. It is the burden of the agency to have evidence or proof in
support of its final decisions. See Marshall v. Department of the Navy,
EEOC Request No. 05910685 (September 6, 1991).
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED and complainant's complaint as identified herein
is REMANDED to the agency for further processing in accordance with the
ORDER below.
ORDER (E0900)
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 (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 (R0900)
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 (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
9/26/2005
Date