Frank O. Hood, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionDec 16, 2011
0120111403 (E.E.O.C. Dec. 16, 2011)

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