0120111393
02-01-2012
Jerry L. Britton, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Jerry L. Britton,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120111393
Agency No. ARCEMEMP10SEP04277
DECISION
Complainant filed an appeal with this Commission from the Agency's
Decision dated December 17, 2010, 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.
Upon review, the Commission finds that Complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim. For the following reasons, we AFFIRM in part, and
REVERSE in part, the Agency’s Decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Engineer Mechanic Supervisor at the Agency’s facility in Memphis,
Tennessee. On October 29, 2010, Complainant filed a formal complaint
alleging that the Agency subjected him to discrimination in reprisal
for prior protected EEO activity under Title VII of the Civil Rights
Act of 1964 when:
1. On September 10, 2010, Complainant was informed by S1, the Supervisory
Civil Engineer that S1 would no longer reimburse Complainant for mileage
from Complainant’s domicile to Ensley Engineer Yard; and
2. On September 18, 2010, Complainant was notified that S1 did not
approve Complainant’s request to purchase equipment for his job.
On December 17, 2010, the Agency issued a Final Decision dismissing the
complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state
a claim. In its Decision, the Agency found that Complainant’s travel
vouchers had been paid and that Complainant suffered no loss or harm as
a result of the action alleged in claim (1). The Agency further found
that just because the Agency had authorized the purchase of equipment
for one location does not mean that the Agency was required to purchase
equipment for another location. Accordingly, the Agency found that
Complainant’s complaint failed to allege harm to a term, condition or
privilege of employment.
CONTENTIONS ON APPEAL
On appeal, Complainant claims that the Agency intentionally misidentified
Complainant’s claim (1). Complainant states that he has never sought
payment for travel from his home to his permanent duty station, but has
submitted vouchers for payment in connection with travel outside of his
duty station. Complainant also states that he submitted requests for
the purchase of two air conditioning units to replace two units for work
stations under his direction that had failed. One unit was approved,
but S1 did not immediately approve the purchase of a second unit.
Complainant states that his supervisees work in hot locations on the
Mississippi River, and that failing to authorize the purchase of the
second unit impacted Complainant’s subordinates, appeared as a challenge
to Complainant’s authority and damaged Complainant’s effectiveness and
reputation as a supervisor. Complainant’s Brief on Appeal, February 7,
2011 at 3.
ANALYSIS AND FINDINGS
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. Dep’t of the Air Force, EEOC
Request No. 05931049 (Apr. 21, 1994).
In the instant case, we find Complainant has alleged in claim (1) that
in an effort to punish Complainant for his prior protected activity, S1
retorted, in the presence of witnesses that Complainant would no longer
be reimbursed for travel vouchers he submitted. We find the record on
appeal is inadequate to determine with certainty whether Complainant has
actually been paid for the travel vouchers he has submitted. Therefore,
we find that the Agency has failed to show that Complainant is not
aggrieved in claim (1) or that claim (1) is moot.
With respect to claim (2), we find that Complainant has alleged that
S1 sought to challenge Complainant’s authority and diminish his
reputation in the Agency by denying or delaying Complainant’s request
for equipment Complainant deemed necessary to the accomplishment of the
Agency’s mission, with the greatest impact being on Complainant’s
subordinates, for whom Complainant was responsible. Complainant has
failed to show that the alleged denial or delaying of his equipment
request led to some tangible harm to Complainant’s employment such as
a lowered performance appraisal, denial of a promotional opportunity, or
reduction in pay. We find that in claim (2), Complainant fails to allege
an injury or harm to a term, condition, or privilege of his employment
for which there is a remedy. See Diaz v. Dep’t of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
CONCLUSION
We AFFIRM the Agency’s dismissal of claim (2). We REVERSE the
Agency’s Final Decision dismissing claim (1) and we REMAND claim (1)
to the Agency for further processing as directed herein.
ORDER (E0610)
The Agency is ordered to process the remanded claim 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 (K0610)
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 77960, Washington, DC
20013. 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 (M0610)
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), at 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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. 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 (Z0610)
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
February 1, 2012
__________________
Date
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0120111393
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111393