0120093260
01-21-2010
Tyrone D. Scott, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Tyrone D. Scott,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120093260
Agency No. 9Y0R09008
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) dated July 31, 2009, 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. In his
complaint, complainant alleged that he was discriminated against based on
reprisal for prior protected EEO activity when on December 2, 2008, the
historian program, of which he was the primary part, received a rating
of marginal with unfavorable commentary in a written unit compliance
inspection (UCI) conducted by the agency's Office of Inspector General
(OIG).
The OIG inspected the Fifth Air Force operations, and gave the historian
program an unfavorable review. Complainant contested some of the
assessments, and contended others were caused by things outside his
control.
Complainant blamed the negative assessment in the UCI report on an
agency official. In its FAD, the agency dismissed the complaint for
failure to state a claim. It reasoned that the agency official was not
in complainant's chain of command, and his input would not reasonably
likely deter EEO activity. Complainant does not dispute that the agency
official was not in his chain of command.
On appeal, complainant contends that the negative UCI inspection report
was used as part of the rationale for not continuing his employment beyond
his initial three year appointment period, resulting in his termination
in April 2009. Complainant appealed his termination to the Merit Systems
Protection Board (MSPB). In its MSPB pre-hearing submissions, a copy
of which complaint submits on appeal, the agency wrote that it expected
complainant's former supervisor to testify that he found complainant's
work product to be unacceptable based on a personal review of his work,
peer reviews, and the UCI Report, which led to his giving complainant
an unacceptable performance appraisal rating and deciding not to extend
his employment beyond his initial three year appointment.
In its initial decision, the MSPB wrote that because of a negative
performance appraisal covering the period of October 1, 2007 to September
30, 2008, complainant was ineligible to register for the priority
placement program (PPP), resulting in him not having the PPP opportunity
after his appointment expired.1 The initial decision indicates that the
performance appraisal reflected complainant's 2005 history report did
not meet minimum standards and that two historian offices found this.
In finding complainant failed to show that the unfavorable performance
appraisal was unwarranted, the MSPB's initial decision pointed in part
to the assessments of others that complainant's 2005 history report
was deficient, i.e., the assessment of four peer historians that it was
unacceptable, and the UCI report that it was poorly written and lacked
appropriate documentation.
In opposition to the appeal, the agency argues that the FAD should
be affirmed. It reasons that the UCI report assessed the history
program, not complainant, and was not made part of his personnel record.
The agency argues that complainant was not injured by the UCI report
itself, nor would it reasonably likely deter protected EEO activity.
It argues that if the UCI report is linked to some subsequent injury,
than it would be proper for complainant to bring a complaint on the
subsequent injury and merge the UCI matter therein. It notes complainant
has already done this with his MSPB appeal on his termination.2
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 Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra.
We agree with the agency's finding that complainant's complaint fails to
state a claim. The UCI report, a review of agency operations by the OIG,
assessed the agency's compliance with the historian and other operations,
and was not an assessment of complainant, per se. By itself, it did not
harm complainant. To the extent the UCI report contributed to complainant
receiving an unfavorable performance appraisal or being separated, the
injury occurred with the appraisal and separation. Complainant has
already filed an EEO complaint on the appraisal, and filed an appeal
with the MSPB challenging his removal. Moreover, we find that the OIG
UCI report would not reasonably likely deter protected EEO activity
because the individual allegedly responsible for the negative report on
the historian function was not in complainant's chain of command.
The FAD 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
January 21, 2010
__________________
Date
1 Scott v. Department of the Air Force, MSPB No. SF-0752-09-0417-I-1
(September 21, 2009).
2 Complainant filed an EEO complaint alleging the unfavorable performance
appraisal was discriminatory.
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0120093260
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093260