01A04620
04-17-2001
Thomas Koslowski, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Thomas Koslowski v. U.S. Department of the Army
01A04620
April 17, 2001
.
Thomas Koslowski,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A04620
Agency No. AJAIFO-0005-A0-060
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated May 12, 2000, dismissing his complaint of unlawful
employment discrimination brought pursuant to Title VII of the Civil
Rights Act of 1964, 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. The Commission accepts the appeal in accordance with 29
C.F.R. � 1614.405.
The record shows that complainant contacted an EEO Counselor on February
2, 2000, and subsequently filed a formal EEO complaint against the agency
on May 8, 2000. In his complaint, complainant claimed that the agency
discriminated against him on the bases of sex, age, and reprisal (for
prior EEO activity), when on January 25, 2000, his supervisor refused to
change his annual performance appraisal (for the rating period 11/1/98
to 10/31/99 ) from �successful� to �exceptional.�
The agency dismissed the complaint on the grounds of failure to state
a claim, finding that a �successful� rating was not adverse and did
not render complainant aggrieved. The agency additionally found that
complainant otherwise suffered no adverse effect or harm associated
with the rating, and that since complainant voluntarily retired since
filing the instant complaint, there was no possibility of future harm
associated with the rating.
Complainant now appeals this determination. In pertinent part,
complainant argues that prior to the �successful� rating, he received
�exceptional� ratings for ten years, and that nothing in his work
performance during the period at issue justified the decrease.
Complainant also contends
that agency management harassed him and treated him unfairly for years,
and that this treatment, along with the �successful� rating �pushed�
him to retire.<1> The agency has not submitted a response to this appeal.
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, disabling condition, or in reprisal for prior
EEO activity. 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); Hobson
v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990)
Here, complainant claims that his supervisor issued him an unfair annual
performance appraisal for the period at issue, and refused to change it.
Review of the record indicates that the performance appraisal at issue
is complainant's official annual performance appraisal, and that it is
of record in his personnel file. Consequently, we find that this claim
renders complainant aggrieved within the meaning of the above cited law
and regulations. Moreover, we also find that complainant's subsequent
retirement does not negate this harm because the appraisal could have
an adverse effect on his future employment, if any. See Tuszynski
v. Department of the Navy, EEOC Appeal No. 01973738 (June 10, 1998).
Accordingly, we find that the agency improperly dismissed the instant
complaint, and we REVERSE that determination, and REMAND the complaint
to the agency for further processing as set forth in 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 (K0900)
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)(Supp. V 1993). 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 (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 (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
April 17, 2001
__________________
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
______________________________
1On appeal, complainant alleges a conflict of interest, contending
that the EEO manager who issued the agency's decision was a named
discriminating official in his EEO complaint. After carefully reviewing
the background statement supporting complainant's formal complaint,
we note that the EEO manager is referenced in complainant's narrative
regarding a variety of prior conflicts at work, but it does not appear
that he is identified as a discriminating official. Nonetheless, we
advise the agency that it must take appropriate measures to insure that
even the appearance of a conflict of interest is avoided.