0120080315
08-13-2009
Robert B. Nolan, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Robert B. Nolan,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120080315
Agency Nos. 07-61076-02153, 07-61076-02202
DECISION
Complainant filed a timely appeal with this Commission from two agency's
decisions dated September 10, 2007, dismissing his complaints 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 his
complaints, complainant alleged that he was subjected to discrimination
on the basis of reprisal for prior protected EEO activity arising under
Title VII when:
(1) Management did not allow him to access witnesses and denied him the
ability to collect affidavits and supporting documents for his proposed
disciplinary action and his prior formal EEO complaint; and
(2) Management did not respond to his correspondence.
The agency decisions dismissed both claims pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim. The agency's decisions
found that complainant failed to establish that he had suffered harm or
loss with respect to a term, condition, or privilege of employment.
On appeal, through his representative, complainant argues that the
agency erred in dismissing his claims for failure to state a claim.
Complainant alleges that management placed him on administrative leave
in February 2007 and ordered him not to enter agency premises or contact
agency employees without express, written permission. He further alleges
that his request to interview agency employees and gather evidence for
his responses to a proposed notice of removal was denied, and he received
no response to many of his separate inquiries when he attempted to obtain
information from management in a way that did not violate the terms of his
administrative leave. Complainant argues that he stated valid retaliation
claims. The agency did not provide a response to complainant's appeal.
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).
However, the anti-retaliation provisions of the employment discrimination
statutes seek to prevent an employer from interfering with an employee's
efforts to secure or advance enforcement of the statutes' basic guarantees
and are not limited to actions affecting employment terms and conditions.
Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
To state a viable claim of retaliation, complainant must allege that he
was subjected to a materially adverse action from the perspective of a
reasonable person, meaning that the action might dissuade a reasonable
person from making or supporting a charge of discrimination. Id.
While trivial harms would not satisfy this inquiry, the significance
of the act of alleged retaliation will often depend upon the particular
circumstances. See also EEOC Compliance Manual, Section 8: Retaliation,
No. 915.003, at 8-15 (May 20, 1998) (any adverse treatment that is based
upon a retaliatory motive and is reasonably likely to deter the charging
party or others from engaging in protected activity states a claim).
Upon review, given the facts of this particular case, we find that
complainant failed to establish that the agency took actions that
could dissuade a reasonable employee from making or supporting a
charge of discrimination. Although complainant alleges that he was
denied the opportunity to gather information to prepare responses to
the agency's notice of proposed removal and an EEO complaint because
management neither permitted him to collect testimonial/documentary
evidence nor responded to his correspondence, he has not alleged that
management prohibited him from preparing a response to the agency's
notice of proposed removal or from participating in the EEO complaint
process. We note that the investigation of an EEO complaint should be
conducted by an EEO investigator assigned to develop an impartial and
appropriate factual record, which may include statements from witnesses
and documentary evidence as the investigator deems necessary. See 29
C.F.R. � 1614.108.
Accordingly, we find that the agency's dismissal of both complaints
for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1)
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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
_______8/13/09___________
Date
2
0120080315
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120080315