0120080143
12-24-2008
Michael J. Smith, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Michael J. Smith,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120080143
Agency No. DON 07-69206-01711
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD)
dated August 29, 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. Complainant alleged
that he was subjected to discrimination based on reprisal for prior
protected EEO activity when he sent e-mails to a supervisory human
resources specialist with the Human Resources Service Center (HRSC) on
May 7, 2007, May 9, 2007, and May 16, 2007, the first of which was read
with no response, and the other two were deleted without being read.
Prior to sending the e-mails, complainant was notified that he was
referred but not selected for two positions for which he applied.
The purpose of the e-mails was to solicit information from the selecting
officials or chairs of the application review panels explaining what
alleged shortcomings caused him not to be selected.
The FAD dismissed the claim for failure to state a claim. It reasoned
that complainant was not harmed.1 On appeal, complainant raises the
claims addressed in the footnote below, and states his complaint is based
on reprisal. In opposition to the appeal, the agency writes that the
selection decisions were made independent of any involvement of HRSC,
and the supervisory human resources specialist was not aware complainant
had been referred out for selection.
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. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra.
Complainant's claim that his e-mail inquiries received no response fails
to state a claim. While irritating, he did not sustain a judicable harm.
There are other avenues to learn the reason for the non-selections.
Moreover, we find the non-response is not likely to deter EEO activity.
The FAD is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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 (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
December 24, 2008
__________________
Date
1 The two positions for which complainant was not selected were
Supervisory Administrative Officer and Financial Program Analyst.
In opposition to complainant's appeal, the agency writes that complainant
included the non-selections in his complaint, but each involved a
different activity, as did his e-mail claim. The agency writes that for
this reason, it split the allegations into three separate complaints, and
sent separate acceptance letters to complainant for each non-selection
by certified mail, but they were returned unclaimed (in October 2007).
The agency can obtain proper service on complainant by mailing to him
the acceptance letters using regular first class mail and adding to
the acceptance letters a certificate of mailing very similar to the one
used at the end of this decision. The record does not show the status
of the accepted claims.
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0120080143
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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