01A32496_r
12-12-2003
John J. Feyas, Jr., Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
John J. Feyas, Jr. v. Department of the Treasury
01A32496
December 12, 2003
.
John J. Feyas, Jr.,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A32496
Agency No. 03-2157
DECISION
Complainant initiated contact with an EEO Counselor on September 19, 2002.
On December 30, 2002, complainant filed a formal EEO complaint wherein he
claimed that he was subjected to discriminatory harassment on the bases
of his sex (male), age (dob 9/21/55), and in reprisal for his previous
EEO activity under Title VII and the Age Discrimination in Employment
Act when:
1. On August 15, 2001, complainant's manager refused to provide
complainant with assistance on a work problem;
2. On August 20, 2001, complainant's manager accused complainant of
bothering the secretary;
3. On August 21, 2001, complainant's manager assigned 25 cases to
complainant in a nine day period and told complainant she would be
watching him;
4. On August 29, 2001, complainant's manager informed complainant that
he could no longer work credit hours on weekends;
5. On September 10, 2001, complainant's manager made negative and
derogatory comments that questioned complainant's ability to do his job;
6. On September 11, 2001, complainant's manager told complainant that
he is selfish, self-centered and greedy;
7. On September 13, 2001, complainant's manager talked about him
negatively in front of another coworker;
8. On September 28, 2001, complainant's manager told complainant he
should be able to handle his workload without complaining;
9. In October 2001, complainant's manager informed complainant that she
previously terminated an employee who also was a Union Steward;
10. In October 2001, complainant's manager informed complainant that
he should be careful who he associates with because they could bring
him down;
11. In November 2001, complainant's manager made derogatory comments
about complainant's ability to do his job;
12. In November 2001, complainant's manager reduced complainant's mid-year
ratings from all fives to all threes;
13. On January 16, 2002, complainant's manager made a derogatory comment
to complainant regarding work he did when the computers were down;
14. In March 2002, complainant's manager made a negative comment in
front of complainant about the Catholic faith;
15. On April 15, 2002, complainant's manager made a derogatory remark
to complainant regarding complainant's professionalism;
16. On June 3, 2002, complainant's manager threatened to take negative
actions against complainant if he challenged his annual appraisal;
17. On June 14, 2002, complainant's manager filed a complaint against
complainant with TIGTA;
18. On July 10, 2002, complainant's manager exhibited bizarre and
unprofessional behavior when she interrupted a conversation complainant
was having;
19. On July 12, 2002, complainant's manager accused complainant of
causing a work stoppage due to his having a work conversation with
another employee; and
20. In September 2002, complainant's manager was rude and interrupted
a conversation complainant was having with a copy repairman.
By agency decision dated February 10, 2003, the agency dismissed
claims 1-19 pursuant to 29 C.F.R. �1614.107(a)(4), on the grounds that
complainant elected to pursue these matters in a negotiated grievance
procedure that permits allegations of discrimination. The agency
determined that complainant had asserted in his grievance that his
manager had subjected him to unprofessional behavior which resulted in
a work stoppage. The agency stated that complainant attached several
documents to his grievance, including documentation dated July 23,
2002, which specifically addressed the same claims identified as 1-19
in the instant complaint. The agency noted that the grievance was
filed on August 2, 2002, prior to the filing of the instant complaint.
The agency dismissed claim (20) pursuant to 29 C.F.R. �1614.107(a)(1),
on the grounds of failure to state a claim. The agency determined that
the fact that complainant's manager talked rudely to complainant did
not affect a term, condition or privilege of complainant's employment.
On appeal, complainant contends that the only incident that he raised
in his grievance was the incident that occurred on July 12, 2002.
Complainant notes that the statement of violation on his grievance cites
only the incident of July 12, 2002. Complainant argues that the number
and type of incidents demonstrate a pervasive pattern that constitutes
harassment.
In response, the agency asserts that claims 1-19 were first raised
in complainant's grievance dated August 2, 2002. The agency further
argues that claims 1-19 were not raised with an EEO Counselor in a
timely manner. The agency states that complainant did not contact
an EEO Counselor until September 19, 2002, and therefore any incident
that occurred before August 5, 2002, was not raised in a timely manner.
With respect to claim (20), the agency asserts that complainant has failed
to state a claim as complainant did not suffer any personal injury and
the claim is insufficient to support a harassment claim.
The Commission finds with regard to claims 1-18 that the agency improperly
dismissed these claims since they were not previously raised in the
negotiated grievance process. A review of complainant's grievance reveals
that the only matter raised was the alleged incident of July 12, 2002.
There is no indication that the grievance was intended to include the
matters that have been identified in the instant complaint as claims 1-18.
Accordingly, the agency's dismissal of claims 1-18 was improper.
With regard to claim (19), we find that the agency properly dismissed
this claim pursuant to 29 C.F.R. �1614.107(a)(4), on the grounds that
complainant elected to raise the matter in a negotiated grievance
procedure that permits allegations of discrimination. It is apparent
that the focal point of the grievance is the matter identified in the
instant complaint as claim (19), i.e., the claim concerning complainant's
manager accusing complainant of causing a work stoppage due to his having
a work conversation with another employee. By filing a grievance prior
to filing the instant complaint, complainant made an election to proceed
through the negotiated grievance process. Once complainant made such
an election he could no longer file a complaint on the same matter.
Accordingly, the agency's dismissal of claim (19) was proper.
As for complainant's claim concerning his manager rudely interrupting
a conversation he was having with a copy repairman (claim 20), we find
that this claim in combination with claims 1-18 is sufficient to allege
a claim of harassment. Therefore, we find that claim (20), in conjunction
with claims (1) - (18), states a claim and the agency's dismissal of claim
(20) was improper.
The agency's dismissal of claim (19) is AFFIRMED. The agency's dismissal
of claims 1-18 and (20) is REVERSED and we REMAND claims (1) - (18)
and (20) to the agency for further processing in accordance with this
decision and the Order herein.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 12, 2003
__________________
Date