0120081926_0120081952
08-21-2008
Otis Johnson, Jr. and Dawn Johnson, Complainants,1 v. Stephen L. Johnson, Administrator, Environmental Protection Agency, Agency.
Otis Johnson, Jr.
and
Dawn Johnson,
Complainants,1
v.
Stephen L. Johnson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal Nos. 0120081926, 0120081952
Agency Nos. C120040069R4; C2-2004-00069-R04; C3-2004-0069-R04
Hearing No. 110200500029X
DECISION
Complainants, as co-class agents, filed timely appeals with this
Commission from the agency's final order dated February 13, 2008, adopting
an EEOC Administrative Judge's decision dismissing the complaints alleging
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.
Upon review, the Commission finds that the complaints were properly
dismissed pursuant to 29 C.F.R. �1614.107(a)(1) and (2) for failure to
state a claim and untimely EEO Counselor contact.
In formal complaints dated September 8, November 18, and December 6, 2004,
complainants alleged, mainly on the basis of reprisal for prior protected
EEO activity under Title VII, that they and others were subjected to
discrimination in connection with the terms and conditions of their
employment. Complainants had originally initiated EEO counseling on these
matters on July 21, August 18 and September 28, 2004. Claims asserted by
the class involved purported denial of career enhancing opportunities,
employee recognition, as well as improper complaint processing and the
agency's distribution of its EEO policy statement.
The first complaint alleges an ongoing unlawful practice by the agency
of distributing its briefs on appeal to all responding management
officials ["Privacy Act" issue]. 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 Administrative
Judge determined that this complaint should be dismissed for failure to
state a claim because there was no indication that management officials
inflicted any "cognizable harm" on the class as a result of this practice.
Moreover, the Administrative Judge found that, to the extent violations of
the Privacy Act were being alleged, such claims are not within the purview
of the EEO complaints process. For these reasons, the Administrative
Judge correctly dismissed this complaint for failure to state a claim.
The second complaint concerns purported retaliatory actions undertaken by
agency officials against the Class Agent Otis Johnson, and all of them
concern his belief that the agency had processed his prior complaints
inappropriately. This complaint accuses the agency of denying class
members "notice of opportunities to participate in advancement, training
and career development programs" and "denying recognition (awards and
commendations) for exceptional performance for individual and team
efforts, even when all other members of the team are recognized for
their contributions." The second complaint also focuses on claims
concerning the manner in which the agency generally processes EEO
complaints. The Administrative Judge dismissed this complaint mainly on
timeliness grounds. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires
that complaints of discrimination should be brought to the attention of
the Equal Employment Opportunity Counselor within forty-five (45) days
of the date of the matter alleged to be discriminatory or, in the case
of a personnel action, within forty-five (45) days of the effective date
of the action. The class agents have presented narratives that describe
their own personal difficulties. The narratives concern matters that
took place prior to 2004, in many cases going back many years prior. The
narratives make clear that there has been prior litigation in which
most of these claims were litigated or should have been. In many
cases, it appears that the difficulties predated the class agent's
initiation of EEO activity, which precludes a claim of retaliation.
Their narratives provide no specifics in support of a violation of this
type that took place within the 45-day limitations period required
by 29 C.F.R. �1614.107(a)(2). Therefore, as the Administrative Judge
determined, to the extent that the narratives presented by the class
agents describe something more than spin-off complaints, they are
defective on timeliness grounds. Moreover, to the extent complainants
are asserting that their untimely claims are part of an ongoing pattern
of harassment, the AJ also correctly determined that these claims are
either the subject of prior matters before the Commission or involved
issues which a reasonable person would not view as "severe or pervasive"
incidents sufficient to establish a claim of hostile work environment.
The description of bases and issues in the third complaint states
that the Class Agent Otis Johnson was subjected to retaliation by the
Assistant Regional Administrator, when he issued a memorandum dated
August 18, 2004, entitled "Policy on Equal Employment Opportunity (EEO)
Prohibiting Discrimination and Harassment." The memo reiterated the
agency's commitment to its EEO policy, and the class agent took offense
because he believed, based on his personal experience, that the memo was
insincere. Like the first complaint, the Administrative Judge correctly
concluded that while this claim was timely raised, it too fail to state
a claim of cognizable harm and should be dismissed.
The Commission finds that the AJ correctly concluded, as a matter of
law, that these three class complaints should be dismissed because these
claims were either untimely, fail to state a claim, or are not covered
by EEO laws.
Accordingly, the agency's final decision dismissing complainant's
complaints 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 (Z0408)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 21, 2008
__________________
Date
1 Complainants served as co-class agents for the three class complaints
presented in this appeal. The three complaints were
consolidated by the EEOC Administrative Judge, who issued a single
decision. The agency issued a consolidated final order on the three
complaints. Class Agent Otis Johnson's appeal was filed on March 17,
2008, and docketed as EEOC Appeal No. 0120081926, and Class Agent Dawn
Johnson's appeal was filed on March 20, 2008, and docketed as EEOC
Appeal No. 0120081952. Because their claims are so inextricably linked,
the Commission has consolidated the two appeals for purposes of this
decision.
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2
0120081926
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120081926, 0120081952