01991350_r
11-05-1999
James L. Collins, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
James L. Collins, )
Appellant, )
)
v. ) Appeal No. 01991350
) Agency No. DOT 6-98-6096
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
On May 19, 1998, appellant filed a formal complaint of discrimination,
alleging that he was subjected to discrimination on the bases of race
(African-American), color (Black), and age (date of birth January 21,
1940) 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.
By notice of processing dated July 20, 1998, the agency accepted the
following allegations:
Appellant was eligible for a Permanent-Change-of-Station (PCS) move,
but when appellant received a travel authorization for a PCS move in
December 1997, the move was temporary, covering a period of less than
two years. Appellant was aware of two similarly-situated employees who
also were transferred from the Interstate Commerce Commission (ICC),
and granted PCS moves;
Appellant's supervisor denied appellant's requests to telecommute in
January 1997 and April 1997, and appellant's request to work out of the
Federal Highway Administration (FHWA) Los Angeles office in January 1997.
Younger employees were allowed to telecommute on a regular basis;
In February 1997, appellant was prescribed medication for diabetes,
and in April 1997, appellant was on medication for severe infections in
both eyes. During appellant's May 1997 meeting with his supervisor to
discuss his performance appraisal, the supervisor told appellant that
he needed more executive reports from appellant. The supervisor also
told appellant to consider disability retirement because of his medical
conditions, and to contact personnel to request disability retirement;
On June 11, 1997, the supervisor told appellant that appellant's medical
condition would not allow him to attend the Academy, and again suggested
that appellant seek a medical retirement and check with Social Security;
The supervisor took away appellant's assigned government duties, and
assigned appellant to answer all telephone calls concerning ICC issues.
Also, someone anonymously placed an article concerning �Breaking Down
the Barriers� in appellant's office mail slot; and
The supervisor inquired on several occasions whether appellant was
planning to retire.
The agency then amended its notice of processing by letter dated November
3, 1998. The amended notice re-characterized appellant's allegations as
�[appellant] was subjected to a hostile work environment and disparate
treatment by [his] supervisor. . . .� The amended notice also found that
the separate and discrete individual instances relating to appellant's
complaint were not being accepted, but �[would] be considered as evidence
proffered in support of the accepted allegations, and the investigation
[would] consider all alleged factual examples of discrimination contained
in appellant's formal complaint.�
Appellant received a copy of the amended notice on November 12, 1998,
and timely appealed to the Commission on December 4, 1998. On appeal,
appellant argues that his allegations must include reference to his
requested PCS move. Appellant believes that the PCS move, a right
mandated by Congress, should be the paramount consideration in his
complaint. Appellant also contends that the amended notice sought to
minimize the impact of appellant's complaint by re-characterizing it as
a question of whether appellant suffered from a hostile work environment
or discrimination at the hands of one person. Appellant contends that
more than just his supervisor has subverted his rights.
The Commission finds that the agency, to avoid fragmenting appellant's
complaint, attempted to distinguish appellant's claims of hostile
work environment and disparate treatment from the factual allegations
supporting them. The agency's definition of the claims, however,
is inadequate absent some reference to the claims' factual context.
The Commission finds that appellant raised two separate claims:
(1) disparate treatment regarding appellant's requests for PCS moves
and flexible workplace telecommuting; and (2) hostile work environment
harassment regarding suggestions of retirement and reassignment of duties.
Further, a review of the record reveals that appellant alleges harm
from officials other than his supervisor alone. In fact, allegation (1)
from the original notice of processing does not list the supervisor as
the sole responsible agency official. Accordingly, appellant's claims
should appear as follows:
Appellant claims that he was subjected to discrimination on the bases of
race (African-American), color (Black), and age (date of birth January 21,
1940), when he was subjected to disparate treatment regarding his PCS and
flexible workplace telecommuting requests, and hostile work environment
harassment regarding his supervisor's suggestions that appellant retire,
and reassignment of appellant's duties.
The Commission reminds the agency that its amended notice explicitly
provides for all of the factual allegations contained in appellant's
formal complaint to be considered as evidence of appellant's claims.
Appellant's allegations have not been dismissed, but have been
incorporated into the claims that they support. Therefore, the agency
must investigate all of the factual allegations listed in appellant's
formal complaint.
CONCLUSION
Accordingly, to the extent that the agency has dismissed appellant's
factual allegations, the agency's decision is REVERSED, and
the allegations are REMANDED for investigation as provided below.
The agency's definition of appellant's claims also is REVERSED, and the
claims are REMANDED as provided below.
ORDER
The agency is ORDERED to take the following actions:
Redefine appellant's complaint as provided above. The agency shall
issue appellant a new notice of processing, with the redefined claims,
within thirty (30) calendar days of the date this decision becomes final.
Thereafter, the agency shall conduct an investigation as provided in EEOC
Regulation 29 C.F.R. �1614.108. The investigation shall include all of
the factual allegations raised in appellant's complaint and listed in
the original notice of processing.
The agency shall submit a copy of the new notice of processing 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. �1614.410.
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(c).
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).
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:
November 5, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations