0120162750
02-03-2017
Linette F.,1 Complainant, v. Jeffrey Shell, Director, Broadcasting Board of Governors (BBG), (International Broadcasting Bureau (IBB)), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Linette F.,1
Complainant,
v.
Jeffrey Shell,
Director,
Broadcasting Board of Governors (BBG),
(International Broadcasting Bureau (IBB)),
Agency.
Appeal No. 0120162750
Agency No. OCR-16-07
DECISION
On August 30, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated August 4, 2016, dismissing her complaint alleging employment discrimination in violation of the First Amendment of the United States Constitution (First Amendment).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contract Writer/Researcher/Reporter/Producer serving the Office of Voice of America (VOA), Persian Division, in Washington, D.C.
On March 2, 2016, Complainant filed a formal complaint, by and through her attorney, alleging that in reprisal for "exercise of her free speech" the Agency reduced her hours and subsequently on November 13, 2015, cut off her services - which constituted a termination.
In her complaint, Complainant wrote that from March 30, 2015 to April 2, 2015, mismanagement and miscalculations by VOA's Persian management team resulted in a disagreement between one of VOA Persian's most esteemed journalists and VOA Persian's management team, resulting in the esteemed journalist being removed from hosting his show. Complainant alleged this caused uproar among VOA Persian staff and audience, and in response around July 2015, the host's followers started an online petition demanding his reinstatement and stating that a professional disagreement between Managers 1 and 2 should not have led to the host's removal. Around August 2015, Complainant signed the petition as a private citizen and viewer of his show, not as a contractor with the Agency. She alleged that the actions taken against her by the Agency were in retaliation for her exercising her freedom of speech by signing the petition.
The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was a contractor, not an employee under common law. It also reasoned that the record failed to show that Complainant participated in protected activity as defined by the EEOC.
On appeal, Complainant argues, by and through her attorney, that she was an employee of the Agency under common law. Complainant reiterates that she signed the petition as a private citizen and viewer of the show, not a contractor of the Agency. She argues that in signing the petition, she exercised her freedom of speech rights as a citizen, that the right to petition is a critical guarantee of the First Amendment, and that she "participated in a protected activity under the First Amendment..." for which she was subjected to retaliation.
ANALYSIS AND FINDINGS
Complaints in the federal sector are processed under 29 C.F.R. Part 1614. EEOC Regulation 29 C.F.R. � 1614.103, which sets forth our jurisdiction, mandates that:
...complaints of employment discrimination and retaliation prohibited by Title VII (discrimination on the basis of race, color, religion, sex and national origin), the ADEA (discrimination on the basis of age when the aggrieved individual is at least 40 years of age), the Rehabilitation Act (discrimination on the basis of disability), the Equal Pay Act (sex-based wage discrimination), or GINA (discrimination on the basis of genetic information) shall be processed in accordance with this part. Complaints alleging retaliation prohibited by these statutes are considered to be complaints of discrimination for purposes of this part.
The Commission does not have jurisdiction over Complainant's complaint of retaliation for her exercise of First Amendment rights. See Van Fossen v. Department of Commerce, EEOC Appeal No. 01A35101 (February 11, 2004).
Accordingly, we find that Complainant's complaint fails to state a claim. 29 C.F.R. � 1614.107(a)(1). The FAD is AFFIRMED.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
February 3, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Because we have found that Complainant's complaint does not state a claim on the above ground, we need not determine if Complainant was an Agency employee under common law.
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