0120073494
11-19-2007
Roger C. Ferreira, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Roger C. Ferreira,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120073494
Agency No. 06-67004-02260
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated July 3, 2007, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as a Purchasing
Agent, GS-1105-07, at the agency's Marine Corps Logistics Command (MCLC)
in Barstow, California. The record reflects that complainant's chain of
supervision was to the headquarters of the Marine Corps Logistics Command,
the MCLB Albany, Georgia.
On October 24, 2006, complainant filed the instant formal complaint.
Therein, complainant claimed that he was subjected to discrimination
on the bases of race, sex, color, age and in reprisal for prior EEO
activity.
In its July 3, 2007 final decision, the agency framed complainant's
claims as follows:
In August 2006, he was informed by management that his job position was
moving to Albany, Georgia, when he had requested to remain at his present
location (Barstow) due to family medical reasons and when management
issued him a letter dated 26 February 2007 with the decision to move
the Purchasing Agent, GS-1105-07 position, which he occupied from MCLB,
Barstow, California location to the Marine Corps Logistics Command,
Albany, Georgia.
The agency dismissed complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(5) on the grounds that the proposed notice of reassignment of
complainant's position was only a preliminary action. The agency further
found that there was no evidence to show that the agency took any action
to actually remove complainant from his Purchasing Agent position.
On appeal, complainant contends that the agency improperly framed his
claims. Specifically, complainant states "it has been my experience
along with my formal complaint that was accepted for investigation that
the agency would not correctly state the true facts as opposed to my
assertion of the facts several times, in their attempt to play down
my complaint."
In response, the agency states that on February 26, 2007, complainant
was notified by the Director of the Civilian Human Resources Office -
South East at MCLB Albany, Georgia, that a determination had been made
to transfer his Purchasing Agent position from MCLB Barstow, California
to MCLB Albany, Georgia. The agency further stated that complainant
was offered the option of transferring with his function to the new
location but complainant declined to relocate citing his health and
that of his spouse. The agency stated that rather relocating to MCLB
Albany, Georgia, complainant accepted another position with the agency
with the Regional Contracting Department of the Fleet and Industrial
Supply Center at the GS-8 level. In support of its assertions, the
agency submits a copy of complainant's SF-50 indicating the transfer
to his new position closer to his residence in San Diego, California,
effective June 10, 2007. Furthermore, the agency argues that the instant
complaint should be dismissed for failure to state a claim pursuant to
29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding that
complainant was not aggrieved.
Based on a fair reading of the record, including complainant's formal
complaint statement and an e-mail dated December 25, 2006 to the EEO
Counselor, we determine that the agency improperly framed and improperly
dismissed complainant's complaint. Here, we find that complainant stated
that when he accepted the position of Purchasing Agent, GS-1105-07, the
Team Leader promised him a grade increase from GS-7 to GS-8 which never
materialized; he experienced computer software difficulties which had
an impact upon his Purchasing Agent duties and management did nothing
to expedite fixing these difficulties; the Team Leader commented to
him after a training session that if he takes more than thirty days to
process a purchasing request, he should pick up his things and leave; and
he was set up to fail. Based on complainant's statement, as set forth
above, we find that his claims are more properly construed as a claim
of harassment. We find that this matter states a cognizable claim.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
Moreover, the agency improperly dismissed complainant's complaint
on the grounds of alleging a proposal to take a personnel action.
As set forth above, complainant raised a harassment claim. Proposed
actions do not create a direct and personal deprivation which would
make the complainant an "aggrieved" employee within the meaning of EEO
Regulations. See Charles v. Department of the Treasury, EEOC Request
No. 05910190 (February 25, 1991); Lewis v. Department of the Interior,
EEOC Request No. 05900095 (February 6, 1990). However, if a proposed
action is purportedly combined with other acts of harassment to form an
alleged pattern of harassment, the agency may not properly dismiss it
as a proposed action. See Suttles v. USPS, EEOC Request No. 05970496
(April 8, 1999). In the instant matter, management notifying complainant
that his Purchasing Agent position would be moved from MCLB Barstow,
California to MCLB Albany, Georgia, is part of his overall harassment
claim. Therefore, we determine that the agency's dismissal of the
instant complaint on the grounds that it is alleging a proposal to take
a personnel action is improper.
Accordingly, we REVERSE the agency's final decision dismissing
complainant's complaint, defined herein as a harassment claim, and we
REMAND this matter 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
November 19, 2007
__________________
Date
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0120073494
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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