01982653
03-31-1999
Ellen E. Spillane, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Ellen E. Spillane, )
Appellant, )
)
v. ) Appeal No. 01982653
) Agency No. 3983024
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
(Federal Aviation Administration), )
Agency. )
______________________________ )
DECISION
Based on a review of the record, we find that the agency improperly
dismissed appellant's complaint, pursuant to EEOC Regulation 29
C.F.R. �1614.107(a), for failure to state a claim when allegedly she
failed to raise a basis of discrimination which is protected under the
Civil Rights laws and regulations administered by this Commission.
A review of the record shows that appellant generally alleges that she
experienced harassment and a hostile work environment for over a two
year period. Additionally, she specifically identifies an incident of
alleged discriminatory discipline on September 22, 1997, when she was
sent home immediately after a co-worker informed the manager that she
was on the phone with an EEO counselor complaining about harassment and
a hostile work environment. The manager followed her out the door to
ensure that she left the office.
The agency argues that this cannot be considered reprisal for engaging in
protected EEO activity because the manager disciplined appellant for the
negative content of the conversation, not because an EEO counselor was
at the other end of the line. We note that appellant subsequently met
with the EEO counselor, and clearly stated reprisal in connection with
the September 22, 1997, telephone call as the basis for her complaint.
Therefore, we find that the agency's dismissal of appellant's complaint
for failing to state a basis was improper. See Osborne v. Department
of the Treasury, EEOC Request No. 05960111 (July 19, 1996).
In fact, a fair and careful reading of all of appellant's statements
indicates that she is also raising a mental disability (anxiety and
depression) as a basis for the alleged discrimination. We note that
it is well settled that additional bases may be raised at any time by
appellant during the EEO process. See Lastre v. Department of Veterans
Affairs, EEOC Request No. 05910862 (December 30, 1991).
Therefore, we find that appellant has sufficiently identified both
reprisal and mental disability, as the bases of her complaint. Moreover,
we construe the complaint as alleging both an incident of discriminatory
discipline on September 22, 1997, and a continuing violation based on
harassment and hostile work environment.
Accordingly, we VACATE the FAD and REMAND the allegations, as reformulated
above, to the agency in accordance with this decision and the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.10.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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.
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of
the Commission that 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. You should be aware,
however, that courts in some jurisdictions have interpreted the Civil
Rights Act of 1991 in a manner suggesting that a civil action must be
filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision. To ensure that your civil action is considered timely,
you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision or to consult an attorney concerning
the applicable time period in the jurisdiction in which your action
would be filed. 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 (Z1092)
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.F.R.).
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:
March 31, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations