U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , a/k/a, Cary J.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior (Bureau of Reclamation), Agency. Appeal No. 0120140604 Hearing No. 551-2013-00124X Agency No. DOI-BOR-12-0523 DECISION Complainant filed an appeal with this Commission from the Agency's Final Decision dated October 24, 2013, fully implementing the decision of the Equal Employment Opportunity Commission Administrative Judge (AJ), 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. For the following reasons, the Commission AFFIRMS the Agency's Final Order dismissing Complainant's complaint. At the time of events giving rise to this complaint, Complainant worked as a Facility Manager at the Agency's Bureau of Reclamation facility in Minidoka Dam, Idaho. On October 3, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination in reprisal for prior protected EEO activity when: Complainant was subjected to harassment from April 27, 2010, through July 2012. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an AJ. Complainant requested a hearing. The AJ assigned to the case granted the Agency's motion to dismiss for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). In his Decision, the AJ found that Complainant's only prior protected EEO activity was participating in the EEO process when other employees identified Complainant as a responsible management official in other EEO complaints. The AJ found that Complainant had not filed an EEO complaint prior to the instant complaint. Accordingly, the AJ found that Complainant's complaint, based solely upon reprisal, failed to state a claim inasmuch as Complainant had no prior protected activity upon which to base his complaint of reprisal. By Order dated September 17, 2013, the AJ dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(1). 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. In the instant case, we find no evidence in the record that Complainant engaged in protected activity prior to the filing of the instant complaint in October 2012. Simply being named a responsible management official in an EEO complaint is not a protected activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's Final Order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140604 2 0120140604