0120121023
05-09-2012
Ronald Hodges, Complainant, v. Sheila C. Bair, Chairman, Federal Deposit Insurance Corporation, Agency.
Ronald Hodges,
Complainant,
v.
Sheila C. Bair,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 0120121023
Agency No. FDICEO11073
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 6, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Resolutions & Receiverships Specialist at the Agency's facility in Dallas, Texas.
On September 16, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), color (Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when on August 12, 2011, he was issued a mid-year appraisal with a "below target" rating.
The Agency dismissed the matter for failure to state a claim, reasoning that a mid-year appraisal was only a preliminary step to taking a personnel action. Moreover, the Agency concluded Complainant failed to state a viable claim of harassment. The instant appeal followed.
ANALYSIS AND FINDINGS
As the Agency correctly argues, the complaint at issue deals solely with a mid-year performance review, not a final rating. 29 C.F.R. � 1614.107(a)(5) provides, in part, that an agency shall dismiss a complaint that alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory. Here, we find that Complainant's mid-year evaluation is a preliminary step to issuing his annual performance appraisal. Thus the mid-year evaluation, without more, is correctly considered a proposed action. See Flanagan v. Department of Commerce, EEOC Appeal No. 0120110304 (March 31, 2011); Durrah v. Department of Labor, EEOC Appeal No. 01A55399 (February 24, 2006). Accordingly, the Agency's dismissal on the grounds that it concerned a proposed personnel action was proper. Moreover, we do not find that the issuance of this mid-year evaluation, standing alone, is sufficient to state a viable claim of harassment.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 (S0610)
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 (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
May 9, 2012
__________________
Date
2
0120121023
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121023