0120103194
06-07-2012
Wayne B. Upshaw, Complainant, v. Thomas Hill Moore, Chair, Consumer Product Safety Commission, Agency.
Wayne B. Upshaw,
Complainant,
v.
Thomas Hill Moore,
Chair,
Consumer Product Safety Commission,
Agency.
Appeal No. 0120103194
Agency No. CPSC-EEO-10004
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 22, 2010, 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. Upon review, the Commission finds that Complainant's complaint was improperly dismissed for failure to state a claim.
BACKGROUND
In December 2009, Complainant requested to file a complaint with the Agency alleging that the Agency provided derogatory information about him to the Bureau of Alcohol, Tobacco and Firearms (ATF) in connection with his application for a position at ATF. In an email, the Agency declined to process his request because it concerned a non-selection at ATF. Complainant appealed to the Commission. We docketed his appeal and considered the email as a dismissal for failure to state a claim.
On March 3, 2010, the Commission concluded that Complainant had stated a viable claim of retaliation because he was alleging that the derogatory information was provided in reprisal for his having engaged in protected activity while an employee of the Agency. The Commission remanded the claim for EEO counseling.1 Upshaw v. Consumer Product Safety Commission, EEOC Appeal No. 0120101281 (March 3, 2010).
The Agency requested reconsideration, arguing, inter alia, that the Commission's decision involved a clearly erroneous interpretation of material fact when it stated that Complainant had been an employee of the Agency. According to the Agency, in 2008, Complainant had been an applicant for employment who had received a tentative job offer that was subsequently withdrawn. He was thus never an Agency employee. In addition, in December 2009, he was not an applicant for employment with the Agency. The Agency thus argued that Complainant lacked standing to file a complaint under 29 C.F.R. � 1614.103. The Agency also argued that it had provided truthful information about a matter of public record to ATF, an action which could not form the basis of a retaliation claim. The Commission denied the Agency's request, concluding that the Agency's arguments mainly addressed the merits of the claim without the benefit of a proper investigation. Upshaw v. Consumer Product Safety Commission, EEOC Request No. 0520100290 (April 29, 2010).
Consequently, the Agency provided Complainant with EEO Counseling and notice of his right to file a formal complaint. On June 11, 2010, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and in reprisal for prior protected EEO activity when Agency employees provided derogatory information to ATF during a background investigation, prompting ATF to stop considering him for employment.
On June 22, 2010, the Agency issued a final decision dismissing the complaint, arguing that Complainant had no standing to file as he was neither an applicant for employment with the Agency, an employee of the Agency, or a former employee of the Agency. This appeal followed.
ANALYSIS AND FINDINGS
Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter protected activity. It is clear from this record and those previously considered by the Commission that Complainant is alleging the Agency gave derogatory information to his prospective employer because he filed an EEO complaint against the Agency.2 While we express no opinion at this juncture as to the merits of this complaint, as noted in EEOC Request No. 0520100290, we again conclude that this states a viable claim of retaliation which demands a proper investigation. This investigation shall also include Complainant's allegation of racial discrimination.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is vacated. The complaint is hereby remanded to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims 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 (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
June 7, 2012
__________________
Date
1 In our decision, we noted that even if Complainant prevailed in his claim against the Agency, his relief would not include retroactive placement into the position he lost at ATF, and we informed Complainant that to secure equitable relief concerning his actual non-selection for the ATF position, he would have to file a complaint with ATF.
2 That complaint is currently pending before the Commission, EEOC Appeal No. 0120102901.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120103194
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013