0120062666
01-23-2007
Rachel McCarthy, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (U.S. Citizenship and Immigration Services), Agency.
Rachel McCarthy,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(U.S. Citizenship and Immigration Services),
Agency.
Appeal No. 01200626661
Agency No. 06-0082
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated February 7, 2006, dismissing her formal EEO
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.
In the instant formal complaint, filed on September 8, 2005, complainant
claimed that she was the victim of unlawful employment discrimination
in reprisal for prior EEO activity when:
1. a July 13, 2005 letter from the Associate General Counsel for General
Law (AGCGL), Office of General Counsel, DHS, wrongfully accused her of
being absent from a professional conference in Washington, D.C. without
permission and thus Absent Without Official Leave (AWOL); and
2. on July 15, 2005, after she and her attorney advised the AGCGL during
a meeting that she wished to amend a prior EEO complaint to include
the July 13, 2005 letter as an act of reprisal, the AGCGL stated that
they both should think very carefully about adding or amending any
charges naming him in an EEO complaint, and if complainant did so,
they both would be sorry because he would use every means available to
address misconduct and defend himself, including reporting them to their
respective state bars.
In its February 7, 2006 final decision, the agency dismissed complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state
a claim.
Under present Commission policy, claimed retaliatory actions which can be
challenged are not restricted to those which affect a term, condition,
or privilege of employment. Instead, a complainant is protected from
any discrimination which is reasonably likely to deter protected EEO
activity. The relevant inquiry is whether the agency's actions would have
a detrimental effect upon complainant's willingness to exercise her rights
and responsibilities regarding EEO matters. See EEOC Compliance Manual
Section 8, "Retaliation;" No. 915.003, at 8-14 to 8-15 (May 20, 1998).
During pre-complaint counseling, complainant asserted that she was
discriminated against in reprisal for participation as a witness
in Equal Pay Act proceedings and that she had filed three previous
EEO complaints, of which AGCGL was aware. Complainant further
asserted that she was wrongfully accused by AGCGL for being absent
from a professional conference in Washington, D.C. without permission.
Specifically, complainant stated that she had already given her supervisor
notice that she would be meeting with her attorney to discuss her EEO
case and would return for the afternoon session, which he approved.
Complainant asserted that AGCGL's July 13, 2005 letter "insinuated
that [complainant] had left the conference without seeking permission
and was somehow trying to shirk her responsibilities as an employee."
Complainant stated that, in his letter, AGCGL made several misstatements
of fact which were intentionally included as an attempt to harass her.
Further, complainant asserted that AGCGL informed her and her attorney
that "if they amended her complaint to include charges against him he
would 'use every means available to address misconduct and defend'
himself including reporting them to their respective state bars."
Complainant reiterates this matter on appeal. The Commission determines
that complainant's claims about AGCGL's alleged actions, if proven true,
would be reasonably likely to deter protected EEO activity. Therefore,
we determine that complainant states a claim of discrimination in reprisal
for prior protected activity.
The agency's final decision dismissing complainant's complaint is
REVERSED. The complaint is REMANDED to the agency for further processing
in accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (M0701)
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 (R0900)
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 (Z1199)
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
January 23, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
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0120062666
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120062666
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