05980788
08-17-2000
Pamela Alexander, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Pamela Alexander v. Department of the Air Force
05980788
August 17, 2000
Pamela Alexander, )
Complainant, ) Request No. 05980788
) Appeal No. 01975380
v. ) Agency No. 4D1C97001
)
F. Whitten Peters, )
Secretary, )
Department of the Air Force, )
Agency. )
____________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On May 5, 1998, Pamela Alexander (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Pamela Alexander v. Department of
the Air Force, EEOC Appeal No. 01975380 (April 16, 1998).<1> EEOC
regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision. 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified and hereinafter referred to as EEOC Regulation 29
C.F.R. � 1614.405(b)). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following two criteria: the appellate decision involved a clearly
erroneous interpretation of material fact or law; or the decision will
have a substantial impact on the policies, practices or operations of
the agency. Id. For the reasons set forth herein, complainant's request
is GRANTED.
BACKGROUND
On April 7, 1997, complainant filed a formal EEO complaint alleging
discrimination based on race (African-American), color (Black), national
origin (African descent), sex (female) and reprisal (prior EEO activity).
In her complaint, she cited nine allegations to support her claim.
In its final decision, the agency dismissed, for varying reasons, six of
those allegations. Complainant appealed that decision. On appeal, our
previous decision reversed some of the agency's dismissals and affirmed
others. In this reconsideration request, complainant challenges that
part of our previous decision dealing with allegation (4) which found
that she failed to state a claim by alleging discrimination on the basis
of reprisal when her husband was issued a Letter of Counseling regarding
a conversation he had with complainant's supervisor about complainant's
employment and discrepancies in her training records.<2> Specifically,
this conversation, which took place on February 7, 1997, concerned a
matter that was raised before an EEO counselor on January 20, 1997.
ANALYSIS AND FINDINGS
The reprisal provisions of Title VII prohibit retaliation against someone
so closely related to or associated with the person exercising his or
her statutory rights that it would discourage or prevent the person
from pursuing those rights. EEOC Compliance Manual, Section 8-II, C.3
(May 20, 1998). For example, it would be unlawful for a respondent to
retaliate against an employee because his or her spouse, who is also an
employee, filed an EEO charge. Id. (citing EEOC v. Ohio Edison Co.,
7 F.3d 541, 544 (6th Cir. 1993) (agreeing that plaintiff's allegation
of reprisal for a relative's protected activities stated a claim under
Title VII); Thurman v. Robert Shaw Control Co., 869 F. Supp. 934, 941
(N.D. Ga. 1994) (holding that plaintiff could establish the first element
of a prima facie case of retaliation by showing that plaintiff's close
relative participated in the complaint process). Both spouses, in such
circumstances, could bring retaliation claims. Id.
In the present case, complainant alleged that she was the victim of
reprisal discrimination when her husband, also an employee of the
agency, received a letter of counseling for a conversation he had
with complainant's supervisor regarding complainant's employment and
discrepancies in her training records. Because complainant's spouse
is a person with whom she is closely related or associated, we find
that adverse actions taken against him allegedly in retaliation for
complainant's prior EEO activity provides her with an actionable reprisal
claim. Also, we note that the short period between the two incidents
(i.e., complainant's prior EEO activity and the disciplinary action
taken against her husband) provides the necessary nexus between the two.
CONCLUSION
After a review of complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
complainant's request meets the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to GRANT the complainant's request.
The Commission's decision with respect to allegation (4) in Appeal
No. 01975380 (April 16, 1998) is REVERSED. There is no further right
of administrative appeal on the decision of the Commission on a Request
to Reconsider.
ORDER
The agency is ORDERED to take the following action:
Within thirty (30) calendar days of the date this decision
becomes final, the agency shall conduct a supplemental investigation
concerning complainant's assertion that during their first meeting after
complainant's January 20, 1997 contact with the EEO office, the agency's
EEO Counselor told complainant that she could not simultaneously
pursue her EEO complaint and her requested congressional investigation;
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall also conduct a supplemental investigation
to determine whether allegation (1) comprises part of a continuing
violation;
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall issue a new decision accepting and/or dismissing
allegation (1); and
The agency shall process allegations (2), (3), and (4) 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 new decision or notice of processing regarding
allegation (1), the agency's letter of acknowledgment to complainant,
and a copy of the notice that transmits the investigative file and notice
of rights regarding allegations (2), (3), and (4) 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
August 17, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
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.
2We note that in her request for reconsideration, complainant also asks
the Commission to consider the issue of attorney's fees since, in our
previous decision, she prevailed on some of her allegations. We refuse
to consider attorney's fees at this time because our previous decision
concerned procedural issues and such an award, if any, is not appropriate
until a final decision is rendered on the merits of her claim.