0120083986
01-09-2009
Rodney S. Gaither, Complainant, v. Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.
Rodney S. Gaither,
Complainant,
v.
Michael O Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120083986
Agency No. HHS-IHS-1328-2008
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 15, 2008, dismissing his formal 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.
On July 2, 2008, complainant, a Medical Technologist attached to the
agency's Blackfeet Service Unit, initiated EEO Counselor contact. The EEO
Counselor's report reflects that complainant claimed that, on June 10,
2008, two agency officials, the Director and the CEO of the Blackfeet
Service Unit, called a meeting with complainant to establish what duties
complainant was currently performing. The CEO purportedly stated that
complainant did not have a "safety net" under the Indian Preference Law
and that "an Indian could walk in and take your job." During this meeting,
one of the agency officials purportedly produced a copy of a 2002 EEO
settlement agreement entered into between the agency and complainant,
and the terms of the settlement agreement were discussed. Complainant
felt that the introduction of the 2002 EEO settlement agreement had no
relevance to the information sought by the agency officials, and believed
that the conversation was meant to intimidate and embarrass him due to
his prior EEO activity.
Informal efforts to resolve complainant's concerns were unsuccessful.
On August 7, 2008, complainant filed the instant formal complaint on
these matters, claiming that he was the victim of unlawful employment
discrimination on the bases of race and in reprisal for prior protected
activity. The agency dismissed the complaint for failure to state a
claim on the grounds that complainant did not suffer any job related
loss or injury as a result of the alleged actions of his supervisors.
The instant appeal followed.
On appeal, complainant argues that the agency's raising of a prior
settlement agreement during the June 10, 2008 discussion was arbitrary,
and employed in a manner to treat him in a "mean, hateful, racist,
and intimidating manner. . ."
EEOC Regulation 29 C.F.R. � 1614.107 (a) (1) provides that an agency
shall dismiss a complaint that fails to state a claim under � 1614.103
or �1614.106 (a).
As a threshold matter, the Commission notes that in its final decision,
the agency determined that complainant alleged discrimination solely on
the bases of race. However, the record reflects that complainant also
raised reprisal as a basis, which the agency did not explicitly dismiss.
The agency is reminded that it must clearly and explicitly dismiss bases,
and offer appeal rights regarding them, in order to have such bases stated
in a complaint dismissed. See Jozlin v. Department of Veterans Affairs,
EEOC Appeal No. 01920040 (February 12, 1992).
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 Northern & Sante Fe Railroad Co. v. White, 548 U.S. 53,
126 S. Ct. 2405 (2006). To state a viable claim of retaliation,
complainant must allege that : 1) he was subjected to an action which
a reasonable employee would have found materially adverse, and 2) the
action could dissuade a reasonable employee from making or supporting
a charge of discrimination. Id. Trivial harms would not satisfy the
initial prong of this inquiry. However, the significance of the act of
alleged retaliation will often depend upon the particular circumstances.
See also EEOC Compliance Manual, No. 915.003 (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); Carroll v. Department of the Army, EEOC Request
No. 05970939 (April 4, 2000).
In this case, we find that complainant has alleged facts that are
sufficient to allege a viable claim. Specifically, complainant asserts
that a meeting was called by agency officials ostensibly to discuss
his job duties. During the course of the meeting, complainant was
purportedly informed that an "Indian could walk in and take [his] job"
because complainant lacked a "safety net" under the Indian Preference Law.
Moreover, agency officials engaged in this conversation while referencing
a prior EEO settlement agreement executed by the agency and complainant,
which has no apparent nexus to the matter at issue in the subject case.
Complainant alleges the discussion of the EEO settlement agreement, as
well as the remarks about losing his job, were designed to intimidate and
embarrass him because of his prior EEO activity. The facts as alleged
by complainant are sufficient to state a claim which requires further
investigation.
The agency's dismissal of the instant complaint for failure to state a
claim is REVERSED. The complaint is REMANDED to the agency for further
processing in accordance with the ORDER below.
ORDER (E0408)
The agency is ordered to process the remanded claim in accordance with 29
C.F.R. � 1614.108 et seq. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 (K0408)
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 (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 (R0408)
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 (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
January 9, 2009
__________________
Date
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0120083986
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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