01a05673
11-01-2000
Willie Eaglin, Jr., Complainant, v. Norman Y. Mineta, Secretary, Department of Commerce, Agency.
Willie Eaglin, Jr. v. Department of Commerce
01A05673
November 1, 2000
.
Willie Eaglin, Jr.,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A05673
Agency No. 00-63-00471D
DECISION
The instant matter is being processed pursuant to a Memorandum of
Understanding (MOU) entered into by the agency, the Bureau of the Census,
and the United States Equal Employment Opportunity Commission. The MOU
was entered into in order to process complaints arising from the 2000
Decennial Census more effectively and efficiently.
Pursuant to the MOU, individuals file their complaints directly with
the Commission. The Commission, through its Washington, D.C. Field
Office, then conducts an early assessment of complaints and neutral
evaluation of cases. The Washington, D.C. Field Office of the Commission
establishes a record of the complaint by obtaining an affidavit from the
complainant and by contacting an agency official to obtain the necessary
information on the complaint. Based on the record established by the
Washington, D.C. Field Office, the Washington, D.C. Field Office will:
(1) notify the agency that the individual has elected not to file a
formal complaint; (2) issue a decision dismissing the complaint and
notify the complainant of his or her right to appeal the decision to
the Office of Federal Operations; (3) conduct settlement negotiations;
or (4) notify the complainant that the complaint has been accepted and
forward the complaint to the agency for further investigation.
On August 10, 2000, the Commission's Washington, D.C. Field Office
dismissed the instant complaint for failure to state a claim. In his
complaint, complainant alleged harm on the basis of retaliation when
he was terminated. Complainant criticized his assistant manager for
taking action against employees without informing them of their mistakes
or giving them an opportunity to correct them. Subsequently, he was
terminated on February 6, 2000. The Field Office found that complainant
had not engaged in prior protected activity, and therefore failed to
state a claim of reprisal.
The record reveals that complainant and a coworker were told to cease
their current projects in December 1999, and were never called back
to work. Complainant was unaware of his infraction, and believed he
was still employed by the agency; he openly criticized the assistant
manager's failure to follow the feedback requirements of supervision.
On February 11, 2000, complainant received a notice of termination,
effective February 6, 2000. The notice did not inform complainant of
the reasons for his termination.
Complainant contacted an EEO Counselor the same day he received his
notice of termination. On February 27, 2000, his termination was
rescinded, and his �not-to-exceed� appointment date was extended to
August 27, 2000. On March 2, 2000, complainant filed a formal complaint
concerning his termination, requesting damages, back pay, lost wages,
and job restoration.<1>
EEOC Regulations require the dismissal of complaints that fail to
state a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim,
complainant must allege present harm inflicted on the basis of race,
sex, religion, national origin, age, disability, or reprisal for prior
protected activity. See Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994).
Concerning claims of reprisal, EEOC Regulations prohibit retaliation
against an individual for opposing any practice made unlawful by Title
VII of the Civil Rights Act (Title VII) (42 U.S.C. � 2000e et seq.),
the Equal Pay Act (29 U.S.C. � 206(d)), the Age Discrimination in
Employment Act (ADEA) (29 U.S.C. � 621 et seq.), the Rehabilitation
Act (29 U.S.C. � 791 et seq.), or for participating in any stage of
administrative or judicial proceedings under these statutes. 29 C.F.R. �
1614.101(b). Complainant did not seek counseling to oppose allegedly
unlawful practices until February 11, 2000, after his February 6, 2000
termination. Complainant's prior criticism of the assistant manager
does not constitute prior protected activity. Therefore, complainant
failed to allege harm on a basis protected by this Commission and his
complaint fails to state a claim.
CONCLUSION
Accordingly, the Field Office's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (S0900)
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 (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 1, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Complainant also filed a separate complaint, Agency No. 00-63-03198D,
claiming that the agency failed to bring him back to work after his
termination was canceled in reprisal for his EEO contact in the present
complaint, and then terminated him (again) on July 29, 2000. He contended
that other employees terminated for similar reasons were called back
to work. Complainant filed a separate appeal for these claims in EEOC
Appeal No. 01A06013, which the Commission closed as premature because
no decision had been issued.