0120091022
05-28-2009
Ezra Teitelbaum, Complainant, v. JoAnn M. Johnson, Chairman, National Credit Union Administration, Agency.
Ezra Teitelbaum,
Complainant,
v.
JoAnn M. Johnson,
Chairman,
National Credit Union Administration,
Agency.
Appeal No. 0120091022
Agency No. 08-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 20, 2008, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. We AFFIRM in part and REVERSE and REMAND in
part the agency's final decision.
During the relevant period, complainant was employed as a Principal
Credit Union Examiner with the agency. In a formal EEO complaint dated
June 4, 2008, complainant alleged that the agency subject him to hostile
work environment harassment on the bases of religion (Orthodox Jewish),
age (over 40), and reprisal for prior protected EEO activity when his
recently-appointed supervisor (S1) (1) on July 20, 2007, told him that
she was unsure if she could approve his request for leave between August
27 and September 14, 2007 due to a planned group meeting on September 10,
(2) took two months to approve complainant's September 10, 2007 request
for leave to travel to Israel on December 14, which caused him to cancel
his vacation plans, (3) denied complainant's November 21, 2007 request
to use leave in December 2008, (4) in January 2008, informed complainant
that she was unhappy with the direction he was taking with a particular
credit union, (5) in February 2008, engaged complainant in a heated
discussion about a regulatory matter and told complainant that no one
would believe his allegation that she discriminates against him because
of his religion because she supervises another employee who is Jewish,
and (6) on February 25, 2008, for the 2007 period, gave complainant a
performance rating 55 points lower than he received the previous year.1
The agency dismissed complainant's claim pursuant to 29 C.F.R. ��
1614.107(a)(4) & (1), raised the matter in a negotiated grievance
process that allows allegations of discrimination and failure to state
a claim. The agency stated that complainant grieved his performance
appraisal in a March 2008 union grievance and buttressed his claim with
detailed recollections of meetings and conversations between him and S1.
The agency stated that complainant detailed many of the same incidents in
his narrative statement for his formal EEO complaint filed in June 2008.
The agency noted that the grievance preceded the complaint. Further, the
agency stated that the actions complainant alleged fail to state a claim
of hostile work environment. The instant appeal followed. On appeal,
complainant stated that his grievance pertains to his performance
appraisal and his formal EEO complaint addresses various discriminatory
actions. Complainant stated that the two are completely separate.
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that
an agency may dismiss a complaint where the complainant has raised
the matter in a negotiated grievance procedure that permits claims of
discrimination. EEOC Regulation 29 C.F.R. � 1614.301(a) states that
a complainant must elect to proceed under either Part 1614 or the
negotiated grievance process, but not both. We note that dismissal
pursuant to 29 C.F.R. � 1614.107(a)(4) can not be based on a similar
matter but rather the same matter and the record does not indicate that
here. We find that complainant's grievance involves his 2007 performance
appraisal and his formal complaint involves harassing incidents between
a particular time-frame. With that said, we find that complainant has
presented a cognizable claim of unlawful harassment and retaliation.
He alleged actions that are sufficiently severe or pervasive to alter the
conditions of complainant's employment and of a type reasonably likely
to deter complainant or others from engaging in protected activity.
Based on the above, we AFFIRM the agency's dismissal of the 2007
performance appraisal pursuant to 29 C.F.R. � 1614.107(a)(4), and REVERSE
the agency's dismissal of the harassment claim and REMAND the matter to
the agency for further processing consistent with this decision and the
Order below.
ORDER (E0408)
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 (K1208)
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 (M1208)
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 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 (T0408)
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 (Z1008)
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
May 28, 2009
__________________
Date
1 The record shows that on March 14, 2008, complainant filed a grievance
under the negotiated grievance process in place regarding the 2007
performance rating he received in February 2008.
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0120091022
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091022