0120111403
12-16-2011
Frank O. Hood, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Frank O. Hood,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120111403
Hearing No. 560-2009-00119X
Agency No. FSA200700276
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated December 2, 2010, dismissing his complaint of
unlawful employment. Upon review, the Commission finds that Complainant's
complaint was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1)
for failure to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Management Analyst at the Agency’s Farm Service Administration
facility in Kansas City, Missouri.
On February 6, 2007, Complainant filed a formal complaint alleging that
the Agency subjected him to hostile workplace discrimination on the
basis of reprisal for various whistleblower activities. The crux of
Complainant's claims reveals that he is alleging that the Agency engaged
in retaliation after he reported alleged prohibited employment practices
of his supervisor to his second level supervisor. Complainant is also
alleging that he was retaliated against when he reported this conduct
to the Office of Inspector General.
Specifically, Complainant alleged the following: 1) on September 30,
2006, he was notified that he would not receive an official appraisal for
his tenure as the Chief of the Human Capital Management (HCM) Section
for the month of December 2005; 2) in September 2006, his superiors
failed to acknowledge and reward him for his contributions during the
HCM initiatives; 3) on September 21, 2006, his supervisor notified him
that he was being removed from his full-time manager's position in the
Human Resource Division (HRD) due to his “poor” and unacceptable
performance, effective October 1, 2006; 4) in July 2006, his supervisor
threatened, in a loud caustic tone, to reassign him to a Technical
GS-13 position and cautioned him to be "very careful;" as a probationary
manager, and HR supervisors failed to take proper actions when notified;
5) in June 2006, his supervisor attempted to persuade, coerced, and later
directed him not to take action against a subordinate for falsifying his
official time and attendance records; 6) since March 2006, and ongoing, he
became both the target and victim of illegal actions of retaliation from
senior officials; and 7) from March through December 2006, his superiors
retained and extended preferential treatment for former HR subordinates.
The matter came before an EEOC Administrative Judge, who dismissed the
complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state
a claim. The AJ found that Complainant conceded that he had never filed
an EEO complaint with the Agency prior to the events at issue. Instead,
the AJ determined that Complainant was actually alleging reprisal for
whistleblower activity, which does not come under the purview of the 29
C.F.R. Part 1614 EEO complaint process.
The Agency subsequently adopted the AJ’s dismissal decision.
The instant appeal followed.
.
ANALYSIS AND FINDINGS
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. Dep’t of the Air Force, EEOC
Request No. 05931049 (Apr. 21, 1994).
Here, despite the AJ’s determination to the contrary, Complainant does
state a viable claim of retaliation covered by EEO complaint process.
While many of Complainant’s claims may warrant federal whistleblower
protection, the record does show that Complainant has prior EEO activity,
and has alleged that the actions that form the basis of his complaint
were the result, at least in part, of retaliatory animus for the EEO
activity. While the AJ correctly observed that Complainant had not
filed a previous EEO complaint against the Agency, he has alleged that
he was an EEO program manager at another federal agency prior to his
employment with the Agency and had provided sworn testimony in multiple
EEO investigations. He alleges that the Agency managers responsible for
the actions in his current complaint were aware of this activity because
he frequently and vocally opposed “illegal and discriminatory personnel
management practices” at the Agency, and said he would refer to his
prior experience in EEO to bolter his arguments that what management
was doing was wrong. This alleged activity is sufficiently protected
to state a viable claim of unlawful retaliation and his complaint was
improperly dismissed.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is REVERSED and the complaint is REMANDED to the Agency for
further action in accordance with the following Order.
ORDER (E0610)
Within thirty (30) calendar days of the date this decision becomes
final, the Agency is ordered to submit a hearing request on the instant
complaint to the Hearings Unit of the EEOC’s Saint Louis District
Office. The Agency is also directed to submit a copy of the complaint
file to the EEOC Hearings Unit within 30 calendar days of the date this
decision becomes final. The Agency shall provide written notification
to the Compliance Officer at the address set forth below that the
complaint file has been transmitted to the Hearings Unit. Thereafter,
the Administrative Judge shall issue a decision on the complaint in
accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a
final action in accordance with 29 C.F.R. § 1614.110.
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 (Nov. 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
December 16, 2011
__________________
Date
2
0120111403
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111403