FAD- Spin Off Complaint

Claim 1 constitutes a spin-off complaint. See EEOC Management Directive (MD) 110, Chapter 5, Section III(F). Under 29 C.F.R. §1614.107(a)(8), an agency is required to dismiss a spin-off complaint, which alleges dissatisfaction, unfairness, or bias in the processing of an EEO complaint. Allegations regarding the manner in which EEO allegations have been processed are not actions which can be remedied through the EEO complaint process. See Zanger v. Department of Veterans Affairs, EEOC Appeal No. 0120103038 (November 24, 2010) (claims concerning processing of complainant’s prior EEO case properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(8) “because these claims alleged dissatisfaction with the processing of an EEO complaint”); see also Morin v. Department of Health and Human Services, EEOC Appeal No. 0120092626 at *3 (August 26, 2010) (agency properly dismissed claim that EEO staff intentionally delayed processing of complainant’s current complaint).

 

Pursuant to the applicable provisions of the EEOC MD 110, Chapter 5, Section IV(D), and by copy of this decision, Claim 1 is being referred to Ted Gutman, FS Civil Rights Director, who is the relevant agency official responsible for the quality of FS EEO complaint processing. Mr. Gutman is required to respond to the Complainant’s concerns and provide a copy of the response to the Office of Adjudication. As required by the MD 110, the information obtained will be incorporated into the complaint files for the prior complaints.[1] See EEOC MD 110, Chapter 5, Section IV(D)(2) (“agency official responsible for the quality of complaints processing must add a record of the complainant’s concerns and any actions the agency took to resolve the concerns, to the complaint file maintained on the underlying complaint”).

 

Regarding Claim 1, the Complainant is further advised that if his concerns about the processing of his prior EEO complaints are not satisfactorily resolved, he may present them to the EEOC at either of the following stages of his prior complaints:

 

1. if a hearing is requested, to the EEOC AJ when the complaint is under the jurisdiction of the AJ; or

 

1. if a hearing is not requested, to the EEOC, Office of Federal Operations (OFO) on appeal.

 

The Complainant will have “the burden of showing improper processing.” See EEOC MD 110, Chapter 5, Section IV(D)(3). However, the Complainant “must raise any dissatisfaction with the processing of his[] [prior] complaint[s] before the Administrative Judge issues a decision on th[ose] complaint[s], the agency takes final action on the complaint[s], or either the Administrative Judge or the agency dismiss[es] the complaint[s].” Id. “No concerns regarding improper processing raised after a decision will be accepted by the agency, the Administrative Judge, or OFO.” Id.

[1] The Complainant’s prior EEO cases are listed in note 4, supra.

FAD – Failure to State a Claim, Employment Ended, Reprisal

Former employees generally cannot state a claim of discrimination based on events that occurred after their employment ended. See Complainant v. Department of Transportation, EEOC Appeal No. 0120132354 (October 29, 2013) (complainant’s allegations regarding “events that [] occurred long after his employment ended” did not relate to any “agency action or inaction regarding a specific term, condition, or privilege of employment nor rais[e] a viable claim of a hostile work environment”); Boandl v. Department of the Treasury, EEOC Appeal No. 0120083588 (January 9, 2009) (“[c]oncerning complainant’s claimed bases[,] with the exception of reprisal, complainant fails to state a claim because th[e] alleged events occurred after he was no longer an employee of the agency” and therefore “the agency’s dismissal of complainant’s claim based on sex, age and disability was proper for lack of standing”). Reprisal is an exception to this general rule. “A former employee may state a viable retaliation claim for protected activity that arose from his or her employment with the agency even if the disputed agency action occurred after the termination of the employment relationship.” See Khatami v. Department of Health and Human Services, EEOC Appeal No. 0120110001 (February 4, 2011). “Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter protected activity.” See Padda v. Department of Justice, EEOC Appeal No. 0120120979 (December 20, 2012) (claim by former employee).  The EEOC has found that allegations by former employees stated a reprisal claim where, after federal employment ended, the employee was not selected for contract work with the agency, see Complainant v. Department of Justice, EEOC Appeal No. 0120064115 (October 12, 2007); Machlin v. United States Postal Service, EEOC Appeal No. 0120070788 (March 29, 2007), where an agency did not include the former employee in a group it solicited to do contract work, see Cernosek v. United States Postal Service, EEOC Appeal No. 0120083075 (September 11, 2008), where an agency requested that a former employee be removed from his contract position, see Complainant v. Department of the Army, EEOC Appeal No. 0120103411 (December 14, 2010), where the agency attempted to damage the professional reputation of the former employee, see Padda, EEOC Appeal No. 0120120979, where an “agency’s actions were designed to intimidate [complainant] and interfere with her pursuit of [] pending EEO matters,” see McCoy v. Department of the Army, EEOC Appeal No. 0120120122 (March 25, 2010), where an “Agency’s actions were designed to intimidate [complainant] and interfere with her right to attend professional conferences held on Agency grounds and open to the public,” see Khatami, EEOC Appeal No. 0120110001, where an agency’s negative feedback delayed the former employee’s certification to practice before the agency, see Boandl, EEOC Appeal No. 0120083588, where an agency provided a negative reference, see Saracino v. Nuclear Regulatory Commission, EEOC Appeal No. 0120111365 (June 16, 2011), and where an agency refused to provide a former employee with an employment reference at all. See Bimes v. Department of Defense, EEOC Appeal No. 01990373 (April 13, 1999).  In contrast, “trivial harms” are not reasonably likely to deter protected activity, and do not state a claim. See McCoy, EEOC Appeal No. 0120100122 (“trivial harms would not satisfy the initial prong of [the retaliation] inquiry”). The EEOC has found that former employees failed to state a reprisal claim where the agency instructed a former employee to return an ergonomic chair, and then took the chair a few days later, see Pleasant v. Department of Housing and Urban Development, EEOC Appeal No. 0120091197 (January 23, 2012), and where the agency made false statements and allegations about a former employee, refused to correct them, and issued memoranda directing that he not be admitted to agency property. See Department of Transportation, EEOC Appeal No. 0120132354.

 

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. See Gutkowski v. United States Postal Service, EEOC Appeal No. 01A53985 at *1 (September 13, 2005).

Footnote – Protected Activity

There is no showing that the Complainant participated in the EEO process before his initial contact with the EEO Counselor in this case. The EEO Counselor’s report reflects that the Complainant alleged reprisal as a basis based on (1) his objections to management’s decisions regarding his position description, (2) his requests for desk audits, and (3) his request for credit towards his retirement. The latter two – requests for desk audits and for credit towards retirement – are not protected activity. See Palacios v. Department of the Army, EEOC Appeal No. 0120093302 at *3 (Jul. 14, 2011) (protected activity is “opposing a practice made unlawful by an EEO statute, or participation in an EEO activity, i.e., filing a complaint, testifying, assisting, or participating in any part of the EEO process”). The Complainant’s objections to his position description could be protected activity if, as part of his objections, he “explicitly or implicitly communicate[d] a belief that the practice constitute[d] unlawful employment discrimination.” See EEOC Compliance Manual § 8-II (B)(2), citing Barber v. CSX Distrib. Services, 68 F.3d 694, 702 (3d Cir. 1995).

Footnote – Limitation of Compensatory Damages

The damages recoverable by the Complainant, should she prevail, might be temporally limited, but the indicated claim is being accepted as timely in accordance with the Lilly Ledbetter Fair Pay Act of 2009 (“the Ledbetter Act”). With respect to discrimination claims alleged under Title VII of the Civil Rights Act of 1964 (Title VII), Section 3 of the Ledbetter Act amends Section 706(e) of Title VII to add, inter alia, in subpart (3)(A), “…an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or part from such a decision or other practice.” As for claims of age discrimination, Section 4 of the Ledbetter Act amends Section 7(d) of the Age Discrimination in Employment Act of 1967 by adding, in Section 7(d)(3), functionally equivalent language.
All references to days refer to calendar days unless specified otherwise

Footnote – Discriminatory Compensation

This claim raises timeliness concerns. If the investigation reveals that this claim is more appropriately characterized as a failure to promote claim, as opposed to a discriminatory compensation claim, and it accrued more than 45 days before the Complainant initiated EEO counseling, it may be dismissed as untimely at the adjudicatory stage. See 29 C.F.R. §§ 1614.105(a)(1)-(2), 1614.107(a)(2); Kannaby v. Department of the Army, EEOC Appeal No. 0120122346 at *2 (Oct. 23, 2012) (timeframe for challenging denial of nonpromotion “not affected by the Lilly Ledbetter Fair Pay Act”), citing Noel v. Boeing Co., 622 F.3d 266, 273 (3d Cir. 2010) and Schuler v. Pricewaterhouse Coopers, 595 F.3d 370, 374 (D.C. Cir. 2010); Brantley v. Department of Commerce, EEOC Appeal No. 0120100187 at *2 (Apr. 26, 2012) (complainant’s claim more properly characterized as failure to upgrade to GS-15, not Fair Pay Act claim of discriminatory compensation); Rand v. Secretary of the Treasury, 816 F.Supp.2d 70, 76 (D.D.C. 2011) (untimely claim that plaintiff denied “accretion of duties promotion” not saved by Fair Pay Act); cf. Gillotte v. Department of Veterans Affairs, EEOC Appeal No. 0120111987 at *1, *3 (Aug. 17, 2011) (complainant did state discriminatory compensation claim where undisputed that her position was upgraded after desk audit).

FAD – Failure to State a Claim- Specific Harm (Agency Budget)

Here, you object that management has “not [been] conservative with agency’s budget.” However, this allegation does not identify a particular individual harm to you, and therefore fails to state a claim. See Mahangu v. United States Postal Service, EEOC Appeal No. 01A60067 (March 10, 2006) (“claim of inefficient management, without more, does not render an employee aggrieved”); Claytor v. Department of Energy, EEOC Appeal No. 01974562 (October 30, 1998) (“budget problems” without direct, personal injury that rendered complainant aggrieved insufficient to state a claim). Accordingly, your allegation regarding mismanagement of agency’s budget is dismissed for failure to state a claim. The regulatory basis for this decision is 29 C.F.R. § 1614.107(a)(1).

FAD – Failure to State a Claim

A key concept in civil rights law is the requirement that a complainant be aggrieved (harmed) by an action of the employer. An aggrieved employee or applicant is one who believes that she has been discriminated against because of membership in a protected class and who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Miller v. United States Postal Service, EEOC Appeal No. 01A54558 at *1 (October 19, 2005), citing Diaz v. Department of the Air Force, EEOC Appeal No. 01932839 (April 21, 1994).

To state a claim, a complainant must allege a present harm inflicted on the basis of race, color, religion, sex, national origin, age, disability, genetic information, or prior protected activity. See 29 C.F.R. § 1614.103(a); Diaz v. Department of the Air Force, EEOC Appeal No. 01932839 at *2 (April 21, 1994). Specifically, a complainant must assert “a direct, personal deprivation at the hands of the employer.” See Diaz, EEOC Appeal No. 01932839 at *2 (internal quotation marks omitted). 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. See Gutkowski v. United States Postal Service, EEOC Appeal No. 01A53985 at *1 (September 13, 2005).