Harry R. Jacknow, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMay 12, 2000
01984984 (E.E.O.C. May. 12, 2000)

01984984

05-12-2000

Harry R. Jacknow, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Harry R. Jacknow v. Department of Transportation

01984984

May 12, 2000

Harry R. Jacknow, )

Complainant, )

)

v. ) Appeal No. 01984984

) Agency No. 4-98-052

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

______________________________)

DECISION

The Commission finds that the agency's decision dated August 26, 1999,

dismissing claim (1) in complainant's complaint is proper for the reasons

set forth herein; dismissing claim (3) is proper for failure to state a

claim pursuant to the regulation set forth at 64 Fed. Reg. 37,644, 37,656

(to be codified as and hereinafter cited as 29 C.F.R. � 1614.107(a)(1));

but dismissing claims (2), (4), and (5) for failure to state a claim is

improper pursuant to 29 C.F.R. � 1614.107(a)(1).<1>

In his complaint, complainant alleged discrimination based on his race

(Caucasian), sex (male), age (DOB:2/14/40), and in reprisal for prior

EEO activity when:

He was subjected to less favorable, disparate treatment than similarly

situated coworkers and a hostile work environment when three identified

female individuals received an upgrade position or a GS-15 position,

whereas he was removed from his managerial position in 1995.

He was not allowed to attend Quality Council meetings; he was required to

attend ITS Division staff meetings; an identified manager was seldom asked

to act for the Division Manager and was seldom stopped by the Division

office or the IRM Team's area; he experienced delays and mishandling

of his computer problems; he was denied his request for equipment and

software; he was denied technical training in FY'97; and he was not

invited to an All Hands Brown Bag Lunch meeting in January 1997.

Two senior management officials questioned him about the status of his

EEO complaint, and other coworkers talked about him and his complaint.

He was given only few assignments that were menial tasks and projects.

In January 1998, he experienced numerous anomalies and failures/tampering

with his personal computer.

With regard to claim (1), complainant submits a copy of documentation

relating to his previous complaint, Agency No. 4-96-077, which is pending

before an EEOC Administrative Judge, in EEOC Hearing No. 210-96-6358X.

The previous complaint involved complainant's March 3, 1995 removal

from his managerial position due to the agency's reorganization and the

agency's preferential treatment of those individuals, described in claim

(1) of the instant complaint. The record indicates that complainant

previously contacted an EEO Counselor on or around April 1, 1995,

concerning the previous complaint. The Commission finds that claim (1)

states the same claim that was raised in the previous complaint which

is pending before the agency; thus, the agency properly dismissed the

subject claim. It is noted that complainant, on appeal, indicates that

he merely raised claim (1) as background information for the complaint.

Claims (2), (4), and (5), involved complainant's assignments, training,

and working conditions. Upon review, the Commission finds that a term,

condition, or privilege of complainant's employment is affected by

the alleged incidents. Thus, the Commission finds that claims (2),

(4), and (5) state a claim. See Diaz v. Department of the Air Force,

EEOC Request No. 05931049 (April 21, 1994).

With regard to claim (3), the Commission finds that agency officials'

inquiry about complainant's EEO complaint does not state a claim.

It is noted that the agency, in its decision, stated that one official

questioned complainant about his complaint in order to resolve the

matter, another official asked to discover whether complainant had filed

a civil action. The Commission notes that under the EEOC regulations,

the parties are encouraged to resolve the complaint during the complaint

process. Complainant also indicated that his coworkers were talking

about him and his complaint. The Commission has consistently held that

a remark or comment unaccompanied by concrete action is not a direct

and personal deprivation sufficient to render an individual aggrieved

for the purposes of Title VII. Henry v. USPS, EEOC Request No. 05940695

(February 9, 1995). Thus, the Commission finds that claim (3) fails to

state a claim within the purview of the regulations.

Accordingly, the agency's dismissal of claims (1) and (3) is AFFIRMED.

The agency's dismissal of claims (2), (4), and (5) is REVERSED, and claims

(2), (4), and (5) are REMANDED to the agency for further processing in

accordance with this decision and applicable regulations.

ORDER (E0400)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 (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:

May 12, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.