05980558
11-04-1999
Ted W. Fitzhugh, Appellant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Ted W. Fitzhugh v. Department of the Air Force
05980558
November 4, 1999
Ted W. Fitzhugh, )
Appellant, )
) Request No. 05980558
v. ) Appeal No. 01966037
) Agency No. 9V1M-96-208
F. Whitten Peters, )
Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On March 24, 1998, Ted W. Fitzhugh (hereinafter referred to as appellant)
timely initiated a request to the Equal Employment Opportunity Commission
(the Commission) to reconsider the decision in Ted W. Fitzhugh
v. F. Whitten Peters, Acting Secretary, Department of the Air Force,
EEOC Appeal No. 01966037 (February 25, 1998). EEOC regulations provide
that the Commissioners may, in their discretion, reconsider any previous
decision. 29 C.F.R. �1614.407(a). The party requesting reconsideration
must submit written argument or evidence which tends to establish one
or more of the following three criteria: new and material evidence
is available that was not readily available when the previous decision
was issued, 29 C.F.R. �1614.407(c)(1); the previous decision involved
an erroneous interpretation of law, regulation or material fact,
or misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth herein, the appellant's request is denied. On its own motion,
the Commission will reconsider the previous decision.
The issue presented is whether the agency properly framed appellant's
complaint.
Appellant contacted an EEO counselor on May 14, 1996, and filed his
formal complaint on June 10, 1996, alleging discrimination based on age
(57) and reprisal. In his complaint, appellant stated that his immediate
supervisor (S1) engaged in a pattern of harassment and reprisal against
him since July 1995, when S1 became his supervisor. In remedy, appellant
seeks, inter alia, compensatory damages. Appellant made the following
specific allegations:
on August 5, 1995, he was counseled by e-mail on requesting leave;
on September 8, 1995, he was counseled by email on requesting leave;
on December 11, 1995, appellant was counseled with regard to his
performance;
on December 21, 1995, he was counseled for failure to meet with S1 twice
a week to discuss certain ongoing programs and processes;
on January 11, 1996, he was not permitted to file all his concerns
through the grievance procedure;
on February 6, 1996, he was issued a AF971 (report of counseling)
Supplemental Sheet;
on February 12, 1996, his request for reassignment was denied;
on May 1, 1996, he received a one-day suspension for failure to request
leave properly, and for a disrespectful attitude towards S1 when he
(appellant) was given a direct order on December 21, 1995; and
on May 9, 1996, his request for reassignment was denied.
On July 8, 1996, the agency issued its final agency decision (FAD),
accepting #9, dismissing #1, #2, #5, #6, and #7 for untimely contact
with an EEO counselor (29 C.F.R. �1614.107(b)), and dismissing #3,
#4, and #8 as having been raised in the grievance procedure (29
C.F.R. �1614.107(d)). Appellant filed a timely appeal, repeating his
charges of harassment by S1. In response, the agency, in its comments,
attempted to modify its FAD to change the grounds for its dismissal of
#3 and #4 to untimely contact with an EEO counselor and to accept #8.<1>
Also, the agency raised an additional ground for dismissal of #5, i.e.,
to add failure to state a claim (29 C.F.R. �1614.107(a)).
The previous decision allowed the agency to accept #8, agreed that #5
is properly dismissed for failure to state a claim, and affirmed the
agency's dismissal of #1, #2, #6, and #7 for untimely EEO contact.
With regard to #3 and #4, the decision found that, because appellant
had not been given rights of appeal for the agency's dismissal of these
allegations as amended, it remanded them for continued processing.<2>
Pending before us is appellant's request that we reconsider the previous
decision. Appellant reiterates his claim of ongoing and continuous
harassment and indicates further events of discrimination and reprisal.<3>
The agency submitted comments in support of its action dismissing all
but two of appellant's allegations.
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence that tends to establish at least one of the criteria of 29
C.F.R. �1614.407(c). Having reviewed the record and submissions of the
parties, we find that appellant's request fails to meet the criteria of
29 C.F.R. �1614.407(c). By its own motion, however, the Commission will
reconsider the previous decision. Upon reconsideration, the Commission
modifies the previous decision, remanding all allegations, except #5,
as part of a claim of harassment.
First, as to #5, we agree with the previous decision that #5 is properly
dismissed for failure to state a claim. This allegation does not allege
a harm with regard to a term, condition, or privilege of employment.
Consequently, appellant is not an "aggrieved employee" within the
terms of the Commission's regulations. 29 C.F.R. �1614.107(a); 29
C.F.R. �1614.103. See Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
With regard to the remaining allegations, we find that the agency
incorrectly framed appellant's complaint, in that, it ignored the
"pattern" aspect of appellant's allegations and failed to consider whether
the complaint, as a whole, alleges an ongoing pattern of harassment.
See Ferguson v. Department of Justice, EEOC Request No. 05970792 (March
30, 1999), Meaney v. Department of the Treasury, EEOC Request No. 05940169
(November 12, 1993). The Commission has held that, by framing and
addressing issues in a complaint as individual and distinct episodes,
an agency may lessen the impact of a complainant's several allegations
and fragment them into separate parts, ignoring any underlying claim of
ongoing and discriminatory harassment. See Manalo v. Department of the
Navy, EEOC Requests Nos. 05970255 and 05970255 (June 1, 1998). In framing
the issues in a complaint, agencies may not ignore the totality of the
circumstances described, especially where appellants raise allegations
of harassment and a hostile work environment. See EEOC Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994), at 4-6; Toole v. EEOC, EEOC Appeal No. 01964702 (May
22, 1997). Here, appellant has made very clear that his complaint is
about an ongoing pattern of harassment by S1, and the agency must, at
a minimum, investigate the full range of the issues raised. See Smith
v. Department of Transportion, EEOC Request No. 05980268 (May 26, 1999).
The allegations at issue in #1, #2, #6 and #7 are all evidence of
appellant's claim of harassment by S1, are related to the accepted and
timely allegations, i.e., #8 and #9, and therefore should be investigated
in support of appellant's harassment claim.
Finally, we consider the previous decision's action remanding #3 and #4
for further processing. As indicated therein, a complainant has a right
of appeal from an agency's final decision. 29 C.F.R. �1614.401. Further,
a complainant is entitled to know the basis for the agency's decision,
and the agency is required to afford notice of the right of appeal to
the complainant. 29 C.F.R. �1614.110. Here, the agency improperly
utilized its comments to modify the reasons for dismissal of #3 and
#4 and failed to provide notice of the right of appeal to appellant.
Such a vehicle for dismissal is improper and not in accord with our
regulations. For this reason, the previous decision properly remanded
these allegations and directed that the agency continuing processing
of #3 and #4. Nevertheless, as noted above, we find that appellant's
allegations, except #5, must be taken together and addressed as a
claim of an ongoing pattern of harassment by S1. Consequently, the
previous decision, and the agency's FAD, except as to #5, are vacated.
Allegations #3 and #4 are therefore also remanded to be investigated as
evidence in support of appellant's harassment claim.
For the above reasons, the Commission finds that appellant's request
does not meet the regulatory criteria of 29 C.F.R. �1614.407(c)
and denies appellant's request to reconsider the previous decision.
On its own motion, the Commission reconsiders the previous decision.
Upon reconsideration, we find that #5 is properly dismissed and #1,
#2, #3, #4, #6, and #7 are remanded to the agency for processing in
association with #8 and #9.<4>
CONCLUSION
After a review of the appellant's request for reconsideration, the
agency's reply thereto, the previous decision, and the entire record,
the Commission finds that the appellant's request fails to meet any of
the criteria of 29 C.F.R. �1614.407(c). It is therefore the decision of
the Commission to deny the appellant's request. Upon its own motion,
the Commission reconsiders the previous decision. The decision in
EEOC Appeal No. 01966037 (February 25, 1998) is affirmed, in part, and
reversed, in part. There is no further right of administrative appeal
on a decision of the Commission on a Request for Reconsideration.
The agency is directed to comply with the Order, below.
ORDER
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall consolidate the remanded
allegations with #8 and #9 and process them together to the extent
possible. The agency shall acknowledge to the appellant that it has
received the remanded allegations within thirty (30) calendar days of the
date this decision becomes final. The agency shall issue to appellant
a copy of the investigative file and also shall notify appellant 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 appellant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (Q0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
November 4, 1999
Date Frances M. Hart
Executive Officer
1The agency conceded that its grievance process was not a "negotiated
procedure" under the Commission's regulations.
2Thereafter, the agency issued a second FAD (FAD 2) dismissing #3 and #4
for untimely EEO contact, and appellant filed an appeal, which was not
docketed by the Office of Federal Operations. Inasmuch as we consider
appellant's complaint, except #5, to state a claim of harassment, FAD
2 and appellant's appeal are dismissed and not addressed.
3Appellant is advised that if he wishes to pursue any new claims through
the EEO process, he must initiate contact with an EEO counselor within 15
days after he receives this decision. The Commission advises the agency
that if appellant seeks EEO counseling regarding the new allegations
within the above 15-day period, the date appellant filed the document
raising these matters shall be deemed to be the date of the initial
EEO contact, unless he contacted an EEO counselor earlier. Cf. Qatsha
v. Department of the Navy, EEOC Request No. 05970201 (January 16, 1998).
4In its comments in response to the appeal, the agency makes reference
to a portion of the complaint not included in the list of allegations
in the agency's FAD. The agency should incorporate this matter within
the complaint.