James E. Trezvant, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionApr 11, 2000
01991316 (E.E.O.C. Apr. 11, 2000)

01991316

04-11-2000

James E. Trezvant, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


James E. Trezvant, )

Complainant, )

)

v. ) Appeal No. 01991316

) Agency No. 5985009

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

____________________________________)

DECISION

On November 30, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by him on November

2, 1998, regarding 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., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The Commission

accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,659

(1999)(to be codified at 29 C.F.R. �1614.405).

In his complaint, complainant alleged that he was subjected to

discrimination on the bases of race, color, age, and reprisal when:

On July 25, 1997, the agency removed him from all operational duties due

to his performance on July 18, 1997. The agency categorized this action

as a �suspension� and determined that it would remain in effect until

a supervisor reviewed the situation. On July 28, 1997, complainant

was issued a memorandum reflecting that the suspension was rescinded,

but was advised that information regarding an incident which occurred

on July 18, 1997 would be considered in any future agency action against

complainant; and

the agency failed to preserve certain documentation requested during

the processing of complainant's informal complaint.

The agency dismissed claim (1) for alleging a proposal to take action,

or other preliminary step to a personnel action is discriminatory.

The agency dismissed claim (2) for failing to state a claim in accordance

with Volume 64 Fed. Reg. 37, 644, 37, 656 (1999)(to be codified and

hereinafter cited as 29 C.F.R. � 1614.107(a)(1)). Specifically, with

respect to claim (1), the agency's October 29, 1998 FAD determined that

the agency's memorandum of July 28, 1997, amounted to nothing more than a

preliminary step to taking a personnel action, and as such, complainant

had not been aggrieved by the agency's action. The FAD also determined

that claim (2) failed to state a claim because complainant had not

suffered any harm or loss affecting a term, condition, or privilege of

his employment.

Upon review, the Commission determines that the agency's decision

dismissing complainant's complaint is AFFIRMED in part, and REVERSED

and REMANDED in part, for the reasons set forth below.

With respect to claim (1), we find that the agency's conduct amounted to

more than a preliminary step to taking a personnel action. Specifically,

the record contains a memorandum dated July 25, 1997, wherein the

agency expressly removed complainant from �all operational duties

involving the separation of aircraft.� The agency's July 25, 1997

letter to complainant effectively suspended him from his duties as a

result of an incident which occurred on July 18, 1997. The agency

then issued complainant a letter dated July 28, 1997 which advised

him that the incident of July 18, 1997 would be considered in future

disciplinary actions against complainant. We find that the agency's

conduct in this instance constituted more than a preliminary step to

taking a personnel action - both in the suspension and in the subsequent

admonishment memorialized by memorandum reflecting that future situations

would warrant review and possible action. Moreover, we find that claim

(1) of the instant complaint is sufficient to state a justiciable claim

of employment discrimination affecting a term, condition, or privilege

of employment. We therefore find that the agency's decision dismissing

claim (1) was improper. The agency's decision is REVERSED and claim

(1) is REMANDED to the agency for processing.

In claim (2) of his complaint, complainant alleged that the agency

purportedly failed to preserve certain documentation during the processing

of his informal complaint. The Commission determines that this claim

was properly dismissed for failure to state a claim. The record does

not indicate that complainant was rendered aggrieved as a result of the

purported agency failure to preserve certain documentation. The agency's

decision regarding claim (2) of complainant's complaint is hereby AFFIRMED

for the reasons set forth herein.

ORDER (E0400)

The agency is ORDERED to process the remanded claim (claim 1) 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 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 (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:

April 11, 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.