01985083
09-09-1999
Jan Throndson, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Jan Throndson, )
Appellant, )
)
v. ) Appeal No. 01985083
) Agency No. P979286
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
______________________________)
DECISION
Jan Throndson (hereinafter appellant) filed an appeal with this
Commission from a final decision of the agency concerning 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, as amended (hereinafter
ADEA), 29 U.S.C. � 621 et seq. The agency issued a final decision on
May 13, 1998. The appeal was postmarked June 11, 1998. Therefore,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.<1>
On August 7, 1997, appellant initiated contact with the agency's EEO
office. Informal attempts to resolve his concerns were unsuccessful
and appellant filed a formal appeal on October 9, 1997.<2> Therein,
he alleged discrimination on the bases of race (white), sex (male), age
(42) and reprisal (filing prior EEO issue). The complaint described a
meeting/discussion between appellant and the Facilities Foreman which
took place on August 7, 1997. The appellant alleged that the foreman
called appellant into his office to discuss an annual leave issue.
During this meeting, appellant told the foreman that he had put in two
different leave requests which were denied and that he had learned that
the foreman had ordered that appellant's requests be denied. The foreman
allegedly began accusing appellant of �trying to pull something funny�
and behaved in a manner which appellant characterized as intimidating
and harassing. This behavior allegedly included the foreman telling
the appellant that the foreman had been told that appellant would hit
him if the foreman ever turned his back, that the foreman would not be
intimidated, and that the foreman was telling the truth and would take
a polygraph test. Appellant alleged that this �one-way conversation�
lasted for forty-five minutes. Appellant ended his statement by noting
that �this on-going type of intimidation and harassment towards me as
a Federal Employee and a person has been allowed to continue� with the
knowledge of superiors in the Federal Medical Center.
In contrast, the final agency decision described the charge as �you allege
on August 7, 1997, your request to change the dates for your annual leave
was denied.� The agency dismissed the complaint by referring to a union
grievance regarding the �above matter� that was filed on August 6, 1997.
The agency held that the grievance form and the complaint stated the same
claim and that the complaint must therefore be dismissed. 29 C.F.R. �
1614.301(a) and 29 C.F.R. � 1614.107(d).
On the grievance form, dated August 6, 1997, appellant alleged that
Article 19 of the Master Agreement was violated when his request to
switch leave with one of his co-workers was denied on August 5, 1997.
EEOC Regulation 29 C.F.R. � 1614.107(d) requires an agency to dismiss a
complaint where the complainant has raised the matter in a negotiated
grievance procedure that permits allegations of discrimination and
29 C.F.R. � 1614.301(a) or 29 C.F.R. � 1614.302 indicates that
the complainant elected to pursue the non-EEO process. An aggrieved
employee who files a grievance with an agency whose negotiated agreement
permits the acceptance of grievances which allege discrimination may not
thereafter file a complaint on the same matter. 29 C.F.R. � 1614.301(a).
Commission precedent holds that in order to dismiss a complaint under
these regulations, the agency must provide sufficient evidence that the
matter in the instant complaint is the same claim as that previously
raised. See Hudson v. Department of Housing and Urban Development, EEOC
Request No. 05960305 (July 25, 1996). While research has not revealed any
precedent defining �same claim� in the context of 29 C.F.R. � 1614.107(d),
in interpreting 29 C.F.R. � 1614.107(a), the Commission has held that in
order to be the �same claim� a complaint must set forth the �identical
matter� raised in the previous complaint. See Russell v. Department of
the Army, EEOC Request No. 05910613 (August 1, 1991). In the instant
case, the allegation as set forth in the final agency decision--denial
of appellant's requests to change the dates of his annual leave--is
only different from that set forth in the grievance form in regard
to the date of the discriminatory event (the FAD listed August 7,
1997, whereas the grievance form listed August 5, 1997). However, the
complaint itself referred not to the denial of these requests, but to
a later discussion/meeting with the Facilities Foreman regarding those
denials. Appellant alleged that in this meeting the foreman behaved in
a manner that appellant characterized as part of an �ongoing type of
intimidation and harassment.�
On appeal, appellant makes no reference to this difference and instead
argues that he was told by an EEO counselor to file a grievance first and
then to file an EEO complaint. Despite appellant's apparent agreement
that the grievance form and the complaint raise the same claim, and
regardless of the Commission's belief that the incidents described in
the grievance form and the complaint form appear to be closely related, a
fair reading of the record indicates that different claims were involved.
Therefore, we find that the dismissal of the complaint on these grounds
was not justified.<3>
The agency's decision to dismiss the complaint is REVERSED and REMANDED
for further processing in accordance with the ORDER below and applicable
regulations.
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. � 1614.410.
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:
Sept. 9, 1999
DATE
Carlton
M.
Hadden,
Acting
Director
Office
of
Federal
Operations
FOR OFO INTERNAL CIRCULATION ONLY
FOR PROCEDURAL CASES
TO: CARLTON M. HADDEN, ACTING DIRECTOR
OFFICE OF FEDERAL OPERATIONS
APPEAL NUMBER:
01985083
AGENCY NUMBER:
P979286
(APPROVED) (DATE)
REQUEST NUMBER:
HEARING NUMBER:
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:
TITLE
NAMES
INITIAL
DATE REVIEWED
(ATTORNEY):
Kerry E. Leibig
June 8, 1999
(SUPERVISOR:
Marjorie Borders
(DIVISION DIRECTOR):
1.) (APPELLANT(S)
Jan Throndson
2.) (AGENCY)
Department of Justice
3.) (DECISION)
FAD Reversed and Remanded
4.) (STATUTE(S)
Title VII, Age Discrimination in Employment Act
5.) (BASIS(ES)
RW, GM, OA, OR
6.) (ISSUE(S)
H1, L2
7.) (TYPIST/DATE/DISK)
KL0/ June 7, 1999
SPELL CHECK:
YES
(PLEASE CHECK ALL APPLICABLE CODES)
PROCEDURAL CODES
LETTER CLOSURE CODES
X 3K - PROCEDURAL DECISION
? 3N - APPEAL DENIED/DISMISSED
? 3P - ADVERSE INFERENCE RAISED
? 4H - OFO AFFIRMED FAD
X 3M - OFO REVERSED AND REMANDED
? 4J - OFO MODIFIED FAD
X 4Q - COMPLIANCE
REQUIRED
? 3B - FAD RESCINDED
? 3C - DUPLICATE DOCKET NUMBER
? 3D - WITHDRAWAL
? 3E - COMPLAINT SETTLED
? 3G - OTHER LETTER CLOSURE
[REVISED AS OF 4/21/98]
1 The dismissal of a complaint or a portion of a complaint may be
appealed to the Commission within thirty (30) calendar days of the
date of the complainant's receipt of the dismissal or final decision.
See 29 C.F.R. �1614.402(a). In the instant case, the agency failed on
appeal to provide a copy of the certified mail receipt or any other
material capable of establishing that date. However, as the appeal
was postmarked earlier than 30 days from the date stamped on the final
decision, this is not an issue.
2 The formal complaint is dated October 9, 1997, though the agency
considers it as filed on October 31.
3 Moreover, while the final agency decision indicated that the
negotiated grievance process under which the appellant operates permits
the acceptance of allegations which allege discrimination, no copy of
the negotiated grievance procedure or other probative evidence has been
submitted. Therefore, even if the complaint and the grievance involved
the same claim, the Commission could not affirm the agency's decision.
See Jennings v. Department of the Treasury, EEOC Appeal No. 01956842
(May 17, 1996),