_________________, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency. Appeal No. 0120111551 Agency No. HSCBP000752011 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated December 21, 2010, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was retired from his employment with the Agency. On November 6, 2010, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity when, on or about June 17, 2010, an Agency attorney contacted the Monterey County District Attorney and alleged Complainant was violating state law in his representation of several Agency employees in equal employment opportunity (EEO) and Merit Systems Protection Board (MSPB) cases by, among other things, practicing law without a license. Complainant alleged that the Agency attorney reported him right after he successfully negotiated a settlement of an EEO case against the Agency, and that the attorney disclosed confidential information about that case to the District Attorney. The Agency dismissed the complaint for failure to state a claim reasoning that Complainant was neither a Federal employee nor an applicant for Federal employment. In addition, the Agency found that the claim constituted a collateral attack on the decision-making process of the Monterey County District Attorney. The instant appeal followed. On appeal, Complainant argues that the Agency falsely stated that the District Attorney’s investigation was initiated by that office on its own initiative when in fact the investigation was requested by Agency attorneys. Complainant next argues that his claim does not constitute a collateral attack. ANALYSIS AND FINDINGS After careful review of the record, the Commission concludes that the Agency improperly dismissed the complaint for failure to state a claim. In this case, Complainant, a retired Agency employee, is alleging that the Agency unlawfully retaliating against him for engaging in protected EEO activity by representing employees of the Agency in their EEO proceedings. The record indicates that Complainant has served as an EEO representative for Agency employees for years. We conclude that, under the facts of this case, this states a viable retaliation claim which requires further investigation and processing. See, e.g., Doyle v. Department of Justice, EEOC Request No. 0520080207 (October 12, 2007) (complainant stated a viable claim of retaliation when, as a former employee who had engaged in protected EEO activity, he was not selected for a contract position with the agency); Bimes v. Department of Defense, EEOC Appeal No. 01990373 (April 13, 1999) (allegation of retaliation involving agency's refusal to provide a former employee with post-employment letters of reference states a viable claim). Moreover, the Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, “Retaliation,” No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra. Clearly, being reported to the State Attorney’s Office for possible violations of state law based on his work as an EEO representative constitutes an action that is reasonably likely to deter Complainant and the Agency employees he represents from engaging in protected activity. Under the unique facts of this case, we are particularly concerned about the chilling effect the Agency’s alleged actions may have on the EEO complainants employed by the Agency who Complainant currently represents or may represent in the future. We note that 29 C.F.R. § 1614.605(a) guarantees Agency employees the right to be represented and advised by the representative of their own choice. We believe that the investigation of this complaint will be the most effective way to protect the integrity of the EEO process in this matter. With regards to the Agency’s argument that the claim consists of a collateral attack on another forum, we disagree. Complainant is not seeking to challenge in front of this Commission the merits of the allegations brought against him by the District Attorney’s office, if any. Instead, Complainant is arguing that the Agency’s attorney’s actions in allegedly contacting the District Attorney’s office constituted prohibited retaliation. Assuming arguendo that the District Attorney’s office were to find that Complainant violated state law, such a finding would not be in conflict with, and indeed could be irrelevant to, a possible finding in the administrative process that the Agency had (or had not) engaged in reprisal. Accordingly, we REVERSE the Agency’s dismissal and REMAND the claim to the Agency for further processing in accordance with the following Order. ORDER (E0610) The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 (R0610) 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 (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 April 4, 2012 __________________ Date 2 0120111551 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120111551