Robert D. Mulkey, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionAug 10, 2000
05990211 (E.E.O.C. Aug. 10, 2000)

05990211

08-10-2000

Robert D. Mulkey, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Robert D. Mulkey v. Defense Logistics Agency

05990211

August 10, 2000

Robert D. Mulkey, )

Complainant, ) Request No. 05990211

) Appeal Nos. 01974919

v. ) 01975774

) 01985854

William S. Cohen, ) Agency Nos. HC97005

Secretary, ) HC97007

Department of Defense, )

(Defense Logistics Agency), )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

On December 4, 1998, Robert D. Mulkey (complainant) filed a timely

request with this Commission to reconsider the decision in Robert

D. Mulkey v. William S. Cohen, Secretary, Department of Defense,

EEOC Appeal Nos. 01974919, 01975774, 01985854 (November 18, 1998).

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 29

C.F.R. � 1614.405(b).<1> Under this regulation, the party requesting

reconsideration must demonstrate that: the appellate decision involved

a clearly erroneous interpretation of material fact or law, or that the

decision will have a substantial impact on the policies, practices or

operations of the agency. For the reasons set forth herein, complainant's

request is GRANTED in part and DENIED in part.

The issue presented herein is whether the previous decision properly

affirmed in part and reversed in part the three final agency decisions

(FADs) which complainant appealed.

FAD 1 (dated May 12, 1997) and FAD 2 (dated July 7, 1997) each dismissed

certain allegations in complainant's two complaints. These complaints

alleged discrimination based on: race (black), color (black), sex (male),

age (DOB: 1/4/46), mental disability (major depression), and in reprisal

for prior EEO activity in violation of Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. � 2000e, et seq., the Age Discrimination

in Employment Act of 1967, as amended, 29 U.S.C. � 621, et seq., and the

Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq. FAD 3

(dated October 2, 1997) notified complainant of the agency's decision to

consolidate the issues which were not dismissed for further processing.

EEOC Appeal No. 01974919

FAD 1 addressed Complaint No. HC97005, wherein complainant alleged that:

1. On August 29, 1996, the Defense Logistics Service investigated

allegations of complainant living beyond his means, being intoxicated on

July 15, 1996, sexually harassing a co-worker, and misuse of a government

credit card;

2. On October 7, 1996, he was suspended for 40 hours for allegedly

sexually harassing a co-worker and being under the influence of alcohol;

3. He was assigned excessive amounts of temporary duty (TDY) and directed

to travel on Saturdays, Sundays and holidays, outside the basic work week,

and had to give up 500 hours of free time in 1996, due to this excessive

travel;

4. On September 26, 1996, a second level supervisor tried to force him

to retract his rebuttal to a proposed suspension notice, dated August 19,

1996;

5. On September 4, 1996, his Privacy Act Rights were violated when

a second level supervisor faxed information pertaining to the above

suspension to a contractor;

6. On October 18, 1996, his second level supervisor spoke to his wife

in a very sarcastic tone; and

7. On October 18, 1996, his wife received a telephone call from the

security specialist who spoke to her in a rude, sarcastic, and harassing

manner, and threatened her that complainant would lose his job and

security clearance.

FAD 1 dismissed issues 4 and 5 for failure to state a claim, and

issues 6 and 7 for failure to show that complainant was the �aggrieved�

individual.

On appeal, the Commission held that because an agency action did not

accompany the incident in issue 4, complainant did not state a claim.

See Backo v. U. S. Postal Service, EEOC Request No. 05960227 (June 10,

1996). Regarding issue 5, the prior decision held that complainant

failed to allege a harm resulting from disclosing the information at

issue, and so failed to state a claim under the Commission's regulations.

Furthermore, the Commission has previously held that the proper recourse

for alleged violations of the Privacy Act lie under that statute. See

Battle v. Department of Transportation, EEOC Request No. 05970976 (June

24, 1999); Bucci v. Department of Education, EEOC Request No. 05890289

(April 12, 1989). Therefore, issue 5 also does not state an actionable

claim within the EEO process for this reason, and was properly dismissed.

Issues 6 and 7 were dismissed because complainant failed to demonstrate

how he was harmed with regard to a term, condition, or privilege of

employment, by the statements made to his wife.

In support of his request for reconsideration, we note that complainant

simply resubmits previously considered evidence along with a statement

which essentially reiterates and embellishes his arguments on appeal.

Moreover, we do not find error in the previous decision, nor that this

issue will have a �substantial impact on the policies, practices or

operations of the agency.� 29 C.F.R. � 1614.405(b). Accordingly,

complainant's request for reconsideration of the decision on Appeal

No. 01974919 is DENIED.

EEOC Appeal No. 01975774

FAD 2 addressed Complaint HC97007, wherein complainant alleged that he

was subjected to a hostile work environment when he was:

1. Harassed by Supervisor L when he was denied compensation for 266.5

hours for traveling to and from assigned duty stations;

2. Harassed by Supervisor L when his medical conditions were discussed

with a manager and co-worker, including a threat of violence against

himself, a supervisor, and a co-worker;

3. Harassed by Supervisor L when he was threatened with �AWOL� if he

failed to report to work on November 11, 1996; and

4. Harassed by Supervisor L in a letter dated February 3, 1997, which

suggested that he resign from the job.

FAD 2 dismissed issues 3 and 4 for failure to state a claim. Complainant

appealed FAD 2, and the prior decision affirmed the dismissal, holding

that the incidents in issues 3 and 4 were only proposed actions, and,

as such, not actionable under the Commission's regulations.

In support of his request for reconsideration, complainant argues that

he has been subjected to on-going harassment, and that the incidents he

describes in issues 3 and 4 were part of the pattern of harassment and

hostile work environment.

Complainant clearly characterized his complaint as one of harassment due

to a hostile work environment. See Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997). In accepting the complaint,

however, the agency did not frame the issues as a harassment claim.

Instead, the agency treated each incident as if it were a separate issue

of discrimination.

When confronted with claims like this, the agency cannot ignore the

pattern aspect of these allegations and define the issue in a piecemeal

manner, as it appears to have done here. See Ferguson v. Department

of Justice, EEOC Request No. 05970792 (March 30, 1999) and Smith

v. Department of Transportation, EEOC Request No.05980268 (May 26, 1999).

The fact that issues 3 and 4 may not independently state a claim does

not relieve the agency of its obligation to view those incidents in

conjunction with complainant's other incidents of alleged harassment and

as part of a hostile environment claim. Id. Complainant's issues in

the instant complaint involve the same responsible management official

and all four incidents occurred within the same time frame. Therefore, we

find that these issues are sufficiently interrelated, and taken together,

constitute a claim of a pattern of harassment.

While permitting the dismissal of a complaint that alleges a proposed act

or preliminary step in taking a personnel action is discriminatory, if

the individual alleges that the preliminary step was part of a pattern of

harassing the individual for a prohibited reason, the complaint cannot be

dismissed because the preliminary step has already affected the employee.

See e.g., Noone v. CIA, EEOC Request No. 05940422 (January 23, 1995).

Since complainant has clearly alleged that the matters raised in issues

3 and 4 constitute part of a pattern of harassment, we find that these

issues should not be dismissed as proposed actions. Accordingly, we

GRANT the request for reconsideration and REVERSE the determination

in the prior decision on EEOC Appeal No. 01975774, which affirmed the

dismissal of issues 3 and 4. 29 C.F.R. � 1614.405(b).

EEOC Appeal No. 01985854

FAD 3 (dated October 2, 1997), notified complainant of the agency's

decision to consolidate the accepted allegations in FAD 1 and FAD 2 for

further processing. The prior decision reversed the agency's decision,

finding that consolidation was improper because the issues were not

sufficiently related.

The Commission's revised regulations now require that two or more

complaints filed by the same complainant shall be consolidated by the

agency for joint processing. 64 Fed. Reg. 37,644, 37,661 (1999) (to be

codified and hereinafter referred to as 29 C.F.R. � 1614.606). Through

mandatory consolidation, the Commission is seeking to better utilize

both agency and Commission resources, as well as avoid fragmentation

of complaints. See EEOC Management Directive (MD) 110 (revised Nov. 9,

1999). Accordingly, we find that the decision on Appeal No. 01985854

must be REVERSED.<2>

Finally, we note that in response to complainant's request, the

agency indicates that an Administrative Judge (AJ) has determined

that complainant's cases should be consolidated for a single hearing.

Complainant notes that the AJ remanded some of his cases to the agency

to hold them in abeyance pending the completion of the investigation on

several other cases filed by complainant. Consequently, it appears that

the matters being remanded should be consolidated with complainant's

other cases for further processing.

CONCLUSION

In conclusion, the Commission finds that the request for reconsideration

should be GRANTED in part. The request regarding the decisions on

EEOC Appeal Nos. 01975774 and 01985854 (November 18, 1998) meets the

criteria of 29 C.F.R. �1614.405(b). The Commission finds that the request

regarding the decision on EEOC Appeal No. 01974919 (November 18, 1998)

does not meet the criteria of 29 C.F.R. � 1614.405(b), and that portion

of the request is DENIED. The determination on EEOC Appeal No. 01974919

(November 18, 1998) remains the decision of the Commission.

ORDER

The agency is ORDERED to take the following actions:

Notify complainant within fifteen (15) calendar days of the date

this decision becomes final that his cases, Complaint No. HC97007 and

Complainant No HC97005, are being consolidated for further processing.

The agency should consolidate the matters being remanded with any other

cases of complainant presently pending, in accordance with the AJ's

direction, as noted above.

Resume processing of complainant's cases in accordance with 64

Fed. Reg. 37,644, 37,656-57 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108).

A copy of the agency's notice of consolidation to complainant 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 (Q0400)

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 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 10, 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 response to complainant's request, the agency indicates

that complainant no longer objects to consolidation of his complaints

since he requested joinder of his cases before an Administrative Judge.