01986670
08-19-1999
Ahmad Nurriddin, Appellant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.
Ahmad Nurriddin v. National Aeronautics and Space Administration
01986670
August 19, 1999
Ahmad Nurriddin, )
Appellant, )
)
v. ) Appeal No. 01986670
) Agency No. NCN-98-HQs-AO34
Daniel S. Goldin, )
Administrator, )
National Aeronautics and )
Space Administration, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated August 6, 1998, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.107(e). The Commission accepts the appellant's
appeal in accordance with EEOC Order No. 960, as amended.
The final agency decision identified three allegations raised by the
appellant's complaint. The decision accepted allegations 1 and 2 for
investigation. The decision dismissed allegation 3 on the ground that
the supervisor's threats to diminish the appellant's performance appraisal
constituted a proposal to take an adverse action. The decision indicated
that the appellant had alleged that in November and December 1997, he
was informed that his performance evaluation would be low because he
attended an excessive number of "minority conferences."
The record indicates that the appellant is employed as an Education
Outreach Program Specialist with primary responsibility for two programs
that provide research and graduate fellowship opportunities to students in
the physical sciences. The appellant is responsible, among other things,
for developing effective liaison activities to provide improved access
and opportunities for graduate students in underrepresented groups through
relationships with national organizations representing African American,
Native American, Hispanic, disabled, and women interests in science,
engineering and technology education and careers.
On appeal, the appellant represents that the threat was carried out
in that his performance evaluation for 1997 was low. However, the
appellant indicates that he has filed an EEO complaint on that issue.
The appellant also contends that the basis for lowering his appraisal,
his attendance at "too many" minority conferences, was discriminatory
on its face. The appellant further contends that the threat to take
an adverse action based upon such racial intolerance rendered his work
environment more hostile.
In response, the agency contends that allegation 3 was properly dismissed
pursuant to 29 C.F.R. �1614.107(e) and that it also could have been
dismissed for failure to state a claim pursuant to 29 C.F.R. �1614.107(a).
The agency represents that the appellant filed a prior complaint (agency
number NCN-97-HQs-AO21) on December 11, 1997, regarding a performance
appraisal which the appellant allegedly received on July 31, 1997.
The Commission finds that, to the extent that the alleged racially
discriminatory remarks pertained to the 1997 performance appraisal,
the alleged remarks should be investigated as part of the appellant's
prior complaint. If, however, the remarks allegedly pertained to the
appellant's 1998 appraisal, it should be investigated as part of any
complaint filed concerning the 1998 performance appraisal. The Commission
also finds that the remarks, without more, are insufficient to indicate
that the appellant may have been subjected to harassment that was
sufficiently severe or pervasive to constitute a hostile work environment.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997.
Finally, the Commission finds that if someone in the appellant's chain
of command made the threats as alleged, then the appellant was placed in
a precarious situation. If he did not decrease the number of minority
conferences he was attending, his performance appraisal would be lowered.
However, if the appellant heeded the alleged warning and decreased the
number of minority conferences he was attending, then his performance
appraisal could be lowered for not performing the required outreach
activities to national organizations representing African American,
Native American, Hispanic, disabled, and women interests in science,
engineering and technology education and careers. For this reason,
the Commission finds that the alleged statements, to the extend that
they occurred, appear to have altered the terms and conditions of
the appellant's employment. In so finding, the Commission notes in
particular that allegedly the appellant was warned about attending too
many "minority" conferences, not just too many conferences in general.
The Commission finds, therefore, that allegation 3 does not concern
a proposed action, but rather, an action which allegedly already has
occurred, i.e., an apparent alteration in the terms and conditions of
the appellant's employment.
CONCLUSION
For the reasons stated above, the Commission REVERSES the agency's
dismissal of allegation 3 and REMANDS the allegation for processing as
ORDERED below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
August 19, 1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations