01985795
03-07-2000
Lynn Abernethy, Jr., Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Lynn Abernethy, Jr. v. Department of the Treasury
01985795
March 7, 2000
Lynn Abernethy, Jr., )
Complainant, )
)
v. ) Appeal No. 01985795
Lawrence H. Summers, ) Agency No. 98-1096
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
On July 15, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on June 22, 1998,
pertaining to 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. <1> In his complaint, complainant alleged that
he was subjected to discrimination on the bases of race (Caucasian),
color (white), sex (male) and in reprisal for prior EEO activity when:
On October 3, 1997, the ratings complainant received on his mid-year
progress review were less than complainant deserved;
On or about July 8, 1997, upper management canceled the Quality
Improvement Project (QIP) after complainant was initially assigned by
his supervisor;
On June 7, 1993, complainant was forced to work under a false position
description for which there were no attorney (GS-905-14) duties;
A June 4, 1993 settlement agreement has continued to violate
complainant's rights;
On August 19, 1997, the EEO element and standard of the
Executive/Managerial Performance Plan was implemented to deny equal
protection to Caucasian males in the workforce; and
On December 24, 1997, Vacancy Announcement No. MEL-98TG6379 was
announced nationwide and complainant was not laterally reassigned to
the position of Supervisory Attorney.
In addition, complainant claims that all of these issues constituted
harassment which created a hostile work environment.
The agency dismissed the issues in complainant's complaint on several
grounds. The agency dismissed issue (1) on the grounds that it involved
a proposal to take an action. Specifically, the agency claimed that
there was nothing in complainant's record to show that the mid-year
progress review had a negative impact on complainant's annual evaluation.
The agency also stated that since the filing of complainant's present
complaint, his Annual Job Element Appraisal was issued and is being
addressed in a subsequent complaint (Agency No. 98-1189).
The agency dismissed issue (2) on the grounds that complainant failed
to state a claim. Specifically, the agency stated that complainant
failed to show that the cancellation of the Quality Improvement Project
impacted his employment.
The agency dismissed issue (3) on the grounds of untimely EEO Counselor
contact and on the grounds that it stated the same claim that is
pending before or has been decided by the agency or the Commission.
Specifically, the agency stated that complainant was relieved of his
supervisory duties and placed in a non-supervisory position in June
1993, but failed to contact an EEO Counselor on this matter until
November 3, 1997, beyond the forty-five (45) day time limit for timely
counselor contact. Alternatively, the agency claimed that issue (3)
involved the same claim that was pursued under Agency Case No. 93-2361
(EEOC Docket No. 110-94-8389X). The agency noted that a decision was
issued by an Administrative Judge (AJ) on May 16, 1995, in which the
Commission recommended that the agency restore complainant to his prior
supervisory position as manager of the Estate and Gift Tax division.
The agency dismissed issue (4) on the grounds that it involved the same
issue previously decided by the agency or Commission. Specifically,
the agency stated that issue (4) was previously processed by the Dallas
Regional Complaint Center in 1994. Also, the agency noted that in April
1995, a hearing was conducted by the Commission on this issue. Finally,
the agency stated that complainant filed a formal complainant on September
24, 1997, (Agency Case No. 97-1391), regarding the same issue.
The agency dismissed issue (5) on the grounds that complainant failed to
state a claim. The agency stated that complainant failed to demonstrate
that the implementation of the critical element standard resulted in any
adverse effect on the terms, conditions, or privileges of his employment.
Alternatively, the agency dismissed issue (5) on the grounds of untimely
EEO Counselor contact. Specifically, the agency noted that the standard
was issued in August 1997, however, complainant did not contact an
EEO Counselor until November 3, 1997, outside the forty-five (45) day
limitations period for timely counselor contact.
Finally, the agency dismissed issue (6) on the grounds that complainant
failed to state a claim. Specifically, the agency stated that since to
date there has been no selection for the position of Supervisory Attorney,
complainant failed to show an adverse impact on the terms, conditions,
or privileges of his employment.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides that the agency shall
dismiss a complaint that states the same claim that is pending before
or has been decided by the agency or Commission.
We find that the agency properly dismissed issues (3) and (4) on the
grounds that they involved the same issues previously decided by the
agency or Commission. The Commission finds that complainant's current
appeal concerning the June 4, 1993 settlement agreement and complainant's
subsequent reassignment on June 7, 1993 is related to and/or inextricably
intertwined with the matters raised in his previous case. See Abernathy
v. Department of the Treasury, EEOC Appeal No. 01956335 (June 2, 1999).
With regard to issue (1), the agency dismissed this claim on the grounds
complainant's mid-year progress review was a proposal to take an action
that did not render complainant aggrieved. Complaint asserts that he
is being subjected to harassment and that the progress review was one
instance of that harassment. We find that since complaint alleges
that the preliminary step was taken for the purpose of harassment,
the allegation cannot be dismissed since it has already affected
the complainant. In addition, there is evidence in a November 12,
1997 memorandum that the mid-year review was relied on by management in
deciding to revoke complainant's flexiplace eligibility. Accordingly,
the agency's decision to dismiss allegation (1) as a preliminary step
to taking a personnel action was in error.
With regard to the agency's dismissal of issue (5) on the grounds of
untimely EEO Counselor contact, we find that complainant has stated
a continuing violation and, therefore, the time limits for initiating
EEO Counselor contact under 29 C.F.R. �1614.105(a)(1) should be waived.
We find that the incident described in issue (5) is interrelated with
complainant's timely allegations of discrimination, as they both involve
incidents of alleged harassment . See Vissing v. Nuclear Regulatory
Commission, EEOC Request No. 05890308 (June 13, 1989).
With regard to issues (2), (5), and (6), we find that the agency
improperly dismissed these issues on the grounds that complainant failed
to state a claim. Complainant alleged that he was subjected to hostile
work environment harassment; however, the agency examined the issues of
alleged discrimination in complainant's complaint individually and not
as an overall claim of harassment. A complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt that the
complainant cannot prove a set of facts in support of the claim which
would entitle the complainant to relief. The trier of fact must consider
all of the alleged harassing incidents and remarks, and considering
them together in the light most favorable to the complainant, determine
whether they are sufficient to state a claim. Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997). We find that
when the incidents alleged are viewed together in the context of a claim
of harassment, they state a claim and the agency's dismissal of those
claims for failure to state a claim was improper.
Accordingly, the agency's decision to dismiss issues (1), (2), (5),
and (6) was improper and is REVERSED and these issues are REMANDED for
further processing in accordance with the Order below. The agency's
decision to dismiss issues (3) and (4) are hereby AFFIRMED.
ORDER (E1199)
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 an
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 (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)
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:
March 7, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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.