01994970
11-05-1999
Gregory L. Morrison, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Gregory L. Morrison v. Department of Defense
01994970
November 5, 1999
Gregory L. Morrison, )
Appellant, )
)
v. )
) Appeal No. 01994970
William S. Cohen, ) Agency No. 99EASLL010
Secretary, )
Department of Defense, )
(Defense Commissary Agency), )
Agency. )
______________________________)
DECISION
On June 2, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated May 17, 1999, dismissing the
basis of reprisal and six allegations from his complaint. The Commission
accepts the appeal in accordance with EEOC Order No. 960, as amended.
Appellant contacted the EEO office regarding allegations of discrimination
based on sex and reprisal. Informal efforts to resolve appellant's
concerns were unsuccessful. Accordingly, on February 18, 1999, appellant
filed a formal complaint alleging harassment.
The agency defined the allegations as follows<1>:
On October 3, 1998, appellant was issued a Performance Improvement Plan
(PIP);
On November 20, 1998, appellant was issued an extension of PIP;
Appellant was forced to work in a hostile work environment when:
he was accused of not providing correct answers in response to an
Inspection Report, memo dated October 5, 1998;
appellant received a memo dated October 15, 1998 concerning not meeting
suspenses timely;
Store Manager asked appellant if the Commissary Officer seemed out of
control; and,
Commissary Officer (CSO) used profanity with customers on the sales
floor and towards management on or about January 3, 1999;
The CSO verbally, physically, and personally threatened the complainant
on several occasions from 1996 to present;
The CSO threatened the appellant with professional harm if he refused
to inflict harm on certain employees from 1996 to present;
The CSO used his position to abuse female employees and family members of
store personnel in the form of sexual harassment from 1996 to present;
The CSO used his position as deciding officer in personnel actions that
appellant proposed for actions against specific employees from 1996 to
present;
The CSO refused to allow appellant consideration for positions of upward
mobility from 1996 to present; and,,
The CSO encouraged employees to disregard all organizational structure
to have employees at all levels call him reporting what they believe, or
like, in spite intermediate levels of supervision from 1996 to present.
The agency issued a FAD dismissing reprisal as a basis and allegations
4 - 9. Specifically, the FAD indicated that appellant's whistleblower
activity was not a protected EEO activity, and therefore he had improperly
claimed reprisal. The agency stated that allegations 4 - 9 had not been
brought to the attention of the counselor, and were not like and related
to a matter that had been raised with the counselor.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(a).
EEOC Regulation 29 C.F.R. �1614.101(b) provides that no person shall be
subject to retaliation for opposing any practice made unlawful by Title
VII, the ADEA, the Equal Pay Act (EPA), or the Rehabilitation Act, or
for participating in any stage of administrative or judicial proceedings
under those statutes. In order to establish discrimination based on
retaliation, an individual must be able to show that he or she engaged
in prior EEO activity based on 29 C.F.R. �1614.101(b).
In the instant case, it is unclear from the record whether appellant
had previously participated in the EEO process. The Counselor's Report
refers to reprisal based on appellant's whistle blower activity, which the
Commission has previously held is outside the purview of the EEO process.
See Giannu v. HUD, EEOC Request No. 05880911 (February 13, 1989); Folley
v. Department of the Navy, EEOC Request No. 05860403 (July 2, 1987).
However, on appeal appellant contends that he has engaged in protected
activities. Appellant argues that he was cited as the "wronging party"
in another's EEO case, and has "opposed discriminatory animus at many
stages." Therefore, the agency's decision to dismiss the basis of
reprisal is VACATED and REMANDED for a supplemental investigation as to
whether appellant engaged in prior EEO activity.
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later allegation or complaint is "like or related"
to the original complaint if the later allegation or complaint adds
to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Calhoun v. United States Postal Service, EEOC Request No. 05891068
(March 8, 1990); Webber v. Department of Health and Human Services,
EEOC Appeal No. 01900902 (February 28, 1990).
The Commission finds that the agency properly dismissed allegations 4 - 9.
The dismissed allegations address verbal and physical threats, sexual
harassment of female employees, abuse of position, upward mobility,
and disregard for the organizational structure. These issues were not
raised with the counselor and are not like or related to the allegations
that were addressed during counseling. Therefore, the agency's decision
to dismiss allegations 4 - 9 is AFFIRMED.
Accordingly, the agency's decision dismissing allegations 4 - 9 is
AFFIRMED. The agency's decision dismissing the basis of reprisal is
VACATED and REMANDED for further processing in accordance with this
decision and the proper regulations.
ORDER
On remand, the agency shall conduct a supplemental investigation on
the issue of whether appellant previously engaged in EEO activity,
including the manner in which appellant experienced reprisal. If the
agency finds that appellant had prior EEO activity, the agency shall
continue the processing of appellant's reprisal basis in accordance
with 29 C.F.R. �1614.108. If no prior EEO activity is found then
the agency shall issue a final agency decision dismissing the basis,
with the appropriate appeal rights. The supplemental investigation and
decision either accepting or dismissing appellant's reprisal claim shall
be completed within sixty (60) calendar days of the date this decision
becomes final.
A copy of the agency's investigation and letter either accepting or
dismissing appellant's reprisal basis must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1099)
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. 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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. 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 (Z1092)
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:
11/05/1999
____________________________
DATE Carlton M. Hadden, Acting Director
1For the purpose of clarity, the allegations have been renumbered.