Brian Jones, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 13, 2001
01A05125_r (E.E.O.C. Dec. 13, 2001)

01A05125_r

12-13-2001

Brian Jones, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.


Brian Jones v. Department of the Army

01A05125

December 13, 2001

.

Brian Jones,

Complainant,

v.

Thomas E. White,

Secretary,

Department of the Army,

Agency.

Appeal No. 01A05125

Agency No. AHBRFO0004A0100

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated July 6, 2000, dismissing his complaint of unlawful

employment discrimination. Complainant alleged that he was subjected

to discrimination on the bases of race and in reprisal for prior EEO

activity<1> when:

In the Fall of 1999 complainant's supervisor gave him a Level 3 rating

on his performance appraisal, and although that was later changed to

a Level 1 rating on March 15, 2000, the revised appraisal contained a

negative annotation from his former supervisor stating he disagreed with

the rating; and

On June 24, 1999, he was given an adverse action (that was later removed

from the record) after a discussion with his supervisor concerning a

problem he was having with another employee.

The agency dismissed claim (1) for failure to state a claim, and claim

(2) for untimely EEO contact. Specifically, the agency determined that,

for claim (1), similarly situated employees also had their appraisals

changed from Level 3 to Level 1, and that the negative annotation

had been removed from complainant's appraisal of record. For claim

(2), the agency found that complainant's March 20, 2000 EEO Counselor

contact was more than forty-five days beyond the July 24, 1999 date of

the adverse action. The agency also found that complainant's basis

of reprisal, which the complaint stated was based on union activity,

was not a protected basis under Title VII.

As an initial matter, we find that, although his complaint stated his

reprisal claim was based on union activity, the record is clear that

complainant is asserting reprisal based on his opposition to unlawful

discrimination in his role as a union shop steward. Consequently, we

find that complainant's asserted basis of reprisal is a valid basis for

his discrimination complaint.

Upon review, we find that claim (1) was improperly dismissed pursuant to

29 C.F.R. � 1614.107(a)(1). We find that the agency's decision addresses

the merits of claim (1), and is irrelevant to the procedural issue of

whether it has stated a justiciable claim under Title VII. See Osborne

v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996).

As claim (1) alleges a harm or loss with respect to a term, condition,

or privilege of complainant's employment, we find that it states a claim.

Furthermore, to the extent that the agency is asserting that claim (1)

is moot because the negative annotation was removed from complainant's

appraisal, we find that claim (1) has not been rendered moot. Although

the record appears to indicate that complainant's annotated appraisal was

replaced with an appraisal absent the annotation, complainant complaint

requests compensatory damages for the anxiety and stress caused by the

incident cited in claim (1). Should complainant prevail on this claim,

the possibility of an award of compensatory damages exists. See Glover

v. United States Postal Service, EEOC Appeal No. 01930696 (December

9, 1993). As the agency has not addressed the issue of compensatory

damages, we find that dismissal on the grounds that claim (1) was rendered

moot would be improper. See Rouston v. National Aeronautics and Space

Administration, EEOC Request No. 05970388 (March 18, 1999).

We find that claim (2) however, was properly dismissed pursuant to

29 C.F.R. � 1614.107(a)(2). The record shows that the adverse action

in claim (2) occurred on June 24, 1999, but that complainant did not

initiate contact with an EEO Counselor until March 20, 2000, which was

well beyond the forty-five day limitation period. On appeal, complainant

has offered no arguments or evidence to warrant an extension of the time

limit for initiating EEO contact.

Accordingly, the agency's decision dismissing claim (2) is AFFIRMED.

The agency's decision dismissing claim (1), including the basis of

reprisal, is REVERSED, and claim (1) is hereby REMANDED for further

processing in accordance with the Order below.

ORDER (E0900)

The agency is ordered to process the remanded claims, as defined by the

Commission herein, 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 13, 2001

__________________

Date

1We note that by letter to the Equal Employment

Manager dated June 12, 2000, complainant withdrew the bases of sex and

color from his May 9, 2000 formal complaint.