01a54220
11-29-2005
Clayton S. Kellum, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.
Clayton S. Kellum v. Department of Justice
01A54220
November 29, 2005
.
Clayton S. Kellum,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A54220
Agency No. P-2004-0005
Hearing No. 110-2005-00109X-PD
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated March 3, 2004, dismissing his complaint of unlawful
employment discrimination. In his complaint, complainant alleged that
he was subjected to discrimination on the basis of reprisal for prior
EEO activity when:
Complainant was charged Absent Without Leave (AWOL) for the following
five days: July 10, 2003, July 11, 2003, July 18, 2003, July 20, 2003,
and November 5, 2003.
Complainant was issued an adverse log entry on October 24, 2003.
On July 15, 2003, staff blocked complainant's exit and �stalked� him
until he departed the institution, after he refused to sign an �illegal
quarterly performance entry.�
The agency dismissed issue (1) pursuant to 29 C.F.R. � 1614.107(a)(5),
on the grounds that this issue is moot. The agency stated that the
above-referenced AWOL charges are moot since they have been removed and/or
corrected. The agency noted that Human Resource Management (HRM) staff at
the United States Penitentiary (USP) Atlanta have verified that the AWOL
charges for July 10-11, 2003, were changed to sick leave, the July 18,
2003 charge was recorded as annual leave, the July 20, 2003 charge was
recorded as a regularly scheduled day off, and the November 5, 2003 charge
was recorded as sick leave. The agency dismissed issue (2) pursuant to 29
C.F.R. � 1614.107(a)(1), for failure to state a claim. The agency stated
that as the log entry is not a final rating, it does not state a claim.
Finally, the agency dismissed issue (3) for failure to state a claim.
The agency found that complainant did not provide any evidence to suggest
that he suffered a personal loss or harm regarding a term, condition,
or privilege of employment. The agency stated there is no evidence in
the record that complainant was subjected to any disciplinary action
as a result of the alleged remarks or actions identified in this issue.
The agency found that complainant failed to state a claim of harassment.
On appeal, complainant states that neither he nor his representative
received the agency's March 3, 2004 final decision until June 2, 2005.
Complainant argues that he has been subject to various tangible employment
actions which have created a significant change in employment status.
With regard to the charges of AWOL, complainant states that although
these charges were later remedied, he claims that these remedies did
not take away the direct economic impact to his family as a result of
the loss of income during the pay periods in question.
We note that the present complaint was pending before an EEOC
Administrative Judge (AJ) at the EEOC Atlanta District Office. On March
18, 2005, the AJ dismissed the subject complaint for lack of jurisdiction
noting that the agency previously dismissed the complaint on March
3, 2004.
Based on complainant's contention that he did not receive the agency's
March 3, 2004 decision until June 2, 2005, and since the record contains
no evidence indicating when the agency mailed the March 3, 2004 final
decision to complainant's address of record, we find the present appeal
timely filed.
Upon review, we find the agency improperly dismissed issue (1) on
the grounds it was moot. Although complainant acknowledges that the
above-referenced AWOL charges were subsequently changed, we note in his
complaint, complainant requested damages as a remedy to his complaint.
We find, the agency should have asked complainant to furnish objective
evidence that he incurred compensatory damages and that the damages
were related to the alleged discrimination. See Jackson v. USPS,
EEOC Appeal No. 01923399 (November 12, 1992), req. to recons. den. EEOC
Request No. 05930306 (February 1, 1993); see also Yancey v. Department
of Health and Human Servs., EEOC Request No. 05931195 (July 20, 1994).
With regard to issue (2), we find that this issue is more properly
dismissed under 29 C.F.R. � 1614.107(a)(5), for alleging that a
preliminary step to taking a personnel action is discriminatory.
The Commission has held that performance log entries only constitute a
preliminary step to taking a personnel action. White v. Department of
Justice, EEOC Appeal No. 01A35308 (April 22, 2004) (citing Bell v. Small
Business Admin., EEOC Request No. 05971046 (March 4, 1999)).
Finally, we find that issue (3) was properly dismissed for failure to
state a claim. Specifically, we find complainant has failed to show
that the alleged incidents are sufficiently severe or pervasive to
constitute harassment. Further, with regard to issue (3), we find that
complainant failed to show that he suffered a personal harm or loss to
a term, condition or privilege of employment.
Accordingly, the agency's decision to dismiss issue (1) is REVERSED and
this issue is REMANDED to the agency for further processing in accordance
with the Order listed below. The agency's decision to dismiss issues
(2) and (3) is AFFIRMED.
ORDER (E0900)
The agency is ordered to process the remanded claims 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
November 29, 2005
__________________
Date