01993599_r
11-20-2001
Robert A. Lowe, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Robert A. Lowe v. Department of Energy
01993599
November 20, 2001
.
Robert A. Lowe,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01993599
Agency No. 99(041)HQ/EM
DECISION
Complainant filed a timely appeal with the Commission from an
agency decision dated March 4, 1999, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The Commission accepts the appeal in accordance with 29
C.F.R. � 1614.405.
The record reveals that complainant attempted to file a formal complaint
on June 24, 1998, prior to receiving EEO counseling. The record further
reveals that by letter dated July 9, 1998, the agency informed complainant
that his complaint would be placed in abeyance until he receive EEO
counseling. During that period, complainant sought EEO counseling
regarding his claims. In his June 24, 1998 complaint, complainant
alleged that he was discriminated against on the basis of disability when:
(1) management proposed to move him to a survey job; and
(2) management refused to accommodate his disability by denying
flexi-place.
On March 4, 1999, the agency issued a decision dismissing claim (1)
on the grounds that it concerned a proposal to take a personnel action.
The agency determined that the evidence of record indicated that moving
complainant to a survey job had not been implemented at the time he filed
his complaint. Therefore, the agency determined that the discriminatory
conduct complainant alleged was a proposal or a preliminary step to
taking a personnel action.
The agency dismissed claim (2) on the grounds of mootness. The agency
stated that complainant's office arranged a work site for him at a
tele-commuting center near his residence. Further, the agency determined
that because appropriate action was already taken, claim (2) no longer
presented a live controversy and was therefore moot.
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides, in part, that the
agency shall dismiss a complaint that alleges that a proposal to take a
personnel action, or other preliminary step to taking a personnel action,
is discriminatory.
The Commission has held that proposed actions do not create a direct
and personal deprivation
which would make the complainant an "aggrieved" employee within the
meaning of EEOC Regulations. See Charles v. Department of the Treasury,
EEOC Request No. 05910190 (February 25, 1991); Lewis v. Department of the
Interior, EEOC Request No. 05900095 (February 6, 1990). The Commission
has also held that if a proposed action is purportedly combined with other
acts of harassment to form an alleged pattern of harassment, the agency
may not properly dismiss it as a proposed action. See Suttles v. USPS,
EEOC Request No. 05970496 (April 8, 1999). In Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993), the Supreme Court affirmed the holding of
Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment
is actionable if it is sufficiently severe or pervasive to alter the
conditions of the complainant's employment.
With respect to claim (1), the Commission finds that there is no
evidence reflecting that complainant has been moved to a survey job.
However, in his formal complaint, complainant wrote that when he was
told he would be moved to a survey job �[an agency official] adopted a
heavy-handed, arrogant tone. He stated that he was going to put me in a
survey job. Because [the agency official] is fully aware of my hearing
loss and periodic deafness, his action constituted an intentional and
malicious threat. Survey work requires heavy telephone contact with the
public...This is not the first time [the agency official] has threatened
to put me in survey work.� Given the manner in which this claim was
articulated in the formal complaint, and considered together with the
matter that is the subject of claim 2 (discussed below), we find that
the agency's dismissal of claim (1) was improper because complainant
alleged that this incident was part of a pattern of harassment.
EEOC Regulations provide for the dismissal of a complaint when the issues
raised therein are
moot. 29 C.F.R. � 1614.107(a)(5). To determine whether the issues raised
in complainant's complaint are in fact moot, it must be ascertained: (1)
if it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur, and (2) if the interim relief
or events have completely and irrevocably eradicated the effects of the
alleged violation. See County of Los Angeles v. Davis, 440 U.S. 625
(1979). When such circumstances exist, no relief is available and no
need for a determination of the rights of the parties is presented.
Regarding claim (2), the agency indicated without elaboration that it
has been rendered moot because complainant's office has arranged a work
site for him at a tele-commuting center near his residence. However,
the record contains no evidence supporting that this alternative work
site arrangement has been implemented. Under these circumstances,
the Commission cannot determine that interim relief or events have
completely eradicated the effects of the alleged discrimination.
Clearly, it is the duty of the agency to have the evidence or proof to
support its final decision. See Marshall v. Department of the Navy,
EEOC Request No. 05910685 (September 6, 1999). Therefore, we find the
agency's dismissal of claim (2) is not supported by the record.
Accordingly, the final agency decision dismissing both claims 1 and
2 is REVERSED and the complaint is REMANDED for further processing in
accordance with the ORDER below.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 20, 2001
__________________
Date