Brian McGee, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionDec 12, 2001
01996516_r (E.E.O.C. Dec. 12, 2001)

01996516_r

12-12-2001

Brian McGee, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.


Brian McGee v. Department of Defense

01996516

December 12, 2001

.

Brian McGee,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

Agency.

Appeal No. 01996516

Agency No. DD-FY99-32

DECISION

On August 20, 1999, complainant timely filed an appeal with the

Commission from a final agency decision dismissing his complaint of

unlawful discrimination on the basis of sex, in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.

In his complaint, complainant alleged that the agency discriminated

against him when:

(1) On January 6, 1998, a School Board Official �gushed� over him and

became �overly

fulsome� with praise of his work;

(2) In a meeting prior to January 6, 1998, the School Board Official

praised complainant's

suggestion of using a power point presentation technique;

(3) Management removed a link to complainant's personal website from

the school

webpage;

(4) Management denied complainant professional recognition for his work

and isolated

him from his colleagues in the technology department, i.e., complainant

was assigned to a desk at a single work site, instead of being

permitted to travel from school to school like other employees;

complainant was excluded from a lunch ; and,

(5) The School Board Official notified complainant of his reassignment

to Japan around

March 3, 1999.

In its final decision, the agency dismissed claims (1) - (4) for failure

to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). Further ,

the agency dismissed claims (1) - (4) on the grounds of untimely EEO

Counselor contact, finding that complainant's March 5, 1999 initial

contact with an EEO Counselor exceeded the prescribed 45-day time limit

under 29 C.F.R. � 1614.105. Moreover, the agency dismissed claim (5) for

failure to state a claim and on the alternative grounds that complainant

elected to pursue this claim through a negotiated grievance procedure.

Claims (1) - (3)

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,

.106(a). The Commission's federal sector case precedent has long defined

an "aggrieved employee" as one who suffers a present harm or loss with

respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

Upon review, the Commission finds that claims (1) - (3) were properly

dismissed for failure to state a claim. We find that these three

claims do not allege a loss or harm regarding the privileges, terms,

or conditions of complainant's employment. Moreover, a review of

the record reflects that the matters in question are insufficient to

support a claim of harassment. See Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997). The agency's decision to

dismiss claims (1) - (3) for failure to state a claim is AFFIRMED. <1>

Claim (4)

The Commission determines that claim (4) was improperly dismissed by

the agency. In claim (4), complainant claims that he was denied the

opportunity to travel in the same capacity as his colleagues, as well

as being denied professional and social interaction, which constitutes

an assertion of harm with a respect to a term, condition, or privilege

of employment by complainant. Therefore, claim (4) states a claim and

was improperly dismissed by the agency on these grounds.

Moreover, we find insufficient basis for the agency's determination that

complainant initiated untimely EEO Counselor contact with respect to

claim (4). Neither in its final agency decision nor in its statement

on appeal does the agency posit a date for the alleged discriminatory

actions in claim (4), though the agency bears the burden of proving

timeliness. Williams v. Department of Defense, EEOC Request No. 05920506

(August 25, 1992). Further, complainant claims that the matters raised

in claim (4) were occurring �increasingly,� and are reflective of ongoing

activity up to the time his complaint was filed that would render his

Counselor contact timely. Therefore, we that the agency's dismissal of

claim (4) for untimely Counselor contact was improper.

Claim (5)

Regarding claim (5), we find that the agency improperly dismissed this

claim for failure to state a claim and on the alternative grounds

that it addresses a claim that was previously raised in a negotiated

grievance process. We note that on appeal, the agency acknowledges that

the grievance process specifically excluded EEO subject matter from its

purview. Therefore, the agency's dismissal on this basis was improper.

Further, the record discloses that the agency improperly characterized

claim (5) as alleging an incident of discrimination in reprisal for prior

protected activity. In fact, the record indicates that claim (5) involves

assertions of discrimination �against males who stand up� to the agency.

Thus, we conclude that claim (5) alleges discrimination based upon sex,

and not in reprisal for prior EEO activity. Moreover, contrary to the

agency's determination that complainant's reassignment to a position in

another country does not rise to the level of an adverse employment action

under EEO regulations, we find that claim (5) states a claim. We find

this alteration of complainant's terms and conditions of employment to

be sufficient to render him an aggrieved employee under EEO Regulations.

Therefore, the agency's dismissal on these grounds was improper.

In summary, the Commission finds that claims (1) - (3) were properly

dismissed, and the agency is AFFIRMED. The Commission determines that the

dismissal of claims (4) and (5) was improper and is REVERSED. Claims (4)

and (5) are REMANDED to the agency for further processing in accordance

with this decision and the ORDER below.

ORDER (E0900)

The agency is ordered to process the remanded claims (claims (4) and (5))

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 12, 2001

__________________

Date

1Because we affirm the agency's dismissal of claims (1) - (3) for

failure to state a claim, we will not address the agency's alternative

grounds for dismissal of these claims.