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.