0120132491
07-17-2015
Complainant, v. Charles F. Bolden, Jr., Administrator, National Aeronautics and Space Administration (Goddard Space Flight Center), Agency.
Complainant,
v.
Charles F. Bolden, Jr.,
Administrator,
National Aeronautics and Space Administration
(Goddard Space Flight Center),
Agency.
Appeal No. 0120132491
Agency No. NCN-13-GSFC-00017
DECISION
Complainant filed a timely appeal with this Commission from the Agency's May 15, 2013 final decision dismissing his complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
For the following reasons, the Commission MODIFIES the Agency's final decision.
BACKGROUND
On March 21, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when:1
1. The Project Manager for Code 421 (P1) placed an offensive and racially motivated statement in his 2011-2012 performance appraisal;
2. P1 denied his request to extend his 18-month detail in Code 421; and
3. Even though he was nominated for the February 3-8, 2013 APPEL International Project Management #9 training, the Director of Code 300 (D1) did not nominate him.
In its final decision, the Agency dismissed Complainant's complaint pursuant to
29 C.F.R. � 1614.107(a)(1). Regarding claim 1, the Agency found that it stated the same claim that was pending before the Commission in EEOC Appeal No. 0120130895 (Agency No. NCN-12-GSFC-0065). Regarding claim 2, the Agency found that it failed to state a claim because Complainant was not aggrieved when P1 did not extend his detail beyond the 18 months that the parties previously agreed upon. Regarding claim 3, the Agency found that it failed to state a claim because Complainant was not aggrieved when he received a nomination for the training, just not from the supervisor of his choice.
On appeal, Complainant did not address the Agency's procedural reasons for dismissing his complaint, but instead argued that management has repeatedly retaliated against him in connection with career advancement opportunities. In opposition to Complainant's appeal, the Agency argued that it properly dismissed his complaint.
ANALYSIS AND FINDINGS
Claim 1
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in pertinent part, that the agency shall dismiss a claim that states the same claim that is pending before or has been decided by the agency or Commission. The Commission has interpreted this regulation to require that the claim must set forth the "identical matters" raised in a previous claim filed by the same complainant, in order for the subsequent claim to be rejected. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 5, � IV.A.5 (Nov. 9, 1999)
Upon review, we find that the Agency properly dismissed claim 1. Specifically, we find that claim 1 is identical to the claim raised by Complainant in EEOC Appeal No. 0120130895. In EEOC Appeal No. 0120130895 (Dec. 5, 2013), the Commission found that Complainant alleged reprisal discrimination when P1 placed an offensive and racially motivated statement in his 2011-2012 performance appraisal, reversed the Agency's final decision dismissing Complainant's complaint, and remanded the matter to the Agency for an investigation. Accordingly, we AFFIRM the Agency's dismissal of claim 1.
Claims 2 and 3
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in pertinent part, that the agency shall dismiss a claim that fails to state a claim. An agency shall accept a claim 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, disability, or genetic information. 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Moreover, the Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term, condition, or privilege of employment; rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, � II.D.3 (May 20, 1998).
Upon review, we find that the Agency properly dismissed claim 3, but not claim 2.
Regarding claim 3, Complainant acknowledged that he was selected for the training after receiving a nomination from another supervisor. Because Complainant was nominated and selected for the training, although not by D1, we find that he did not show that he suffered a harm or loss with respect to a term, condition, or privilege of employment, or that the incident was one that is reasonably likely to deter protected activity. Accordingly, we AFFIRM the Agency's dismissal of claim 3.
Regarding claim 2, Complainant alleged that P1 denied his request to extend his detail in
Code 421 even though he was interested in staying. The Commission has previously held that an allegation that an agency denied a complainant's request to extend a detail states a claim. See Hoover v. Dep't of Transp., EEOC Appeal No. 01A34994 (Jan. 13, 2004) (finding that complainant was aggrieved when the agency denied her request to extend her detail beyond six months); Graves v. Dep't of the Navy, EEOC Appeal No. 01A02496 (May 11, 2001) (finding that complainant was aggrieved when the agency did not extend his detail upon expiration); DiLoreto v. Dep't of Health & Human Servs., EEOC Appeal No. 01991358
(Jan. 31, 2001) (finding that complainant was aggrieved when the agency terminated her detail and that the agency's arguments - that the detail expired as scheduled and that complainant was not told the detail would be extended - addressed the merits of her complaint). Accordingly, we REVERSE the Agency's dismissal of claim 2.
CONCLUSION
Based on a thorough review of the record, the Commission MODIFIES the Agency's final decision dismissing Complainant's complaint and REMANDS claim 2 to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim 2 in accordance with
29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded complaint 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 within ninety (90) calendar days from the date that you receive this decision. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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
__7/17/15________________
Date
1 The allegations are based on the formal complaint, the EEO Counselor's Report, and emails submitted by Complainant to the EEO Counselor.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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