William D. Snapp, Complainant,v.Ida L. Castro, Chairwoman, Equal Employment Opportunity Commission, Agency.

Equal Employment Opportunity CommissionNov 9, 2000
05A00578 (E.E.O.C. Nov. 9, 2000)

05A00578

11-09-2000

William D. Snapp, Complainant, v. Ida L. Castro, Chairwoman, Equal Employment Opportunity Commission, Agency.


William D. Snapp v. Equal Employment Opportunity Commission

05A00578

November 9, 2000

.

William D. Snapp,

Complainant,

v.

Ida L. Castro,

Chairwoman,

Equal Employment Opportunity Commission,

Agency.

Request No. 05A00578

Appeal No. 01997254

Agency No. 0-9900045-HQ

DECISION ON REQUEST FOR RECONSIDERATION

On March 16, 2000, William D. Snapp (complainant) timely initiated a

request to the Equal Employment Opportunity Commission (the Commission)<1>

to reconsider the decision in William D. Snapp v. Equal Employment

Opportunity Commission, EEOC Appeal No. 01997254 (February 10, 2000).<2>

EEOC regulations provide that the Commissioners may, in their discretion,

reconsider any previous Commission decision. 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

The record indicates that complainant filed a complaint alleging that

he was subjected to discrimination when he was informed by the General

Counsel that he would be demoted and removed from his position as the

Regional Attorney of the Atlanta District Office. Complainant alleged

further that the agency's actions amounted to a constructive demotion,

forcing him to accept a position as an Alternative Dispute Resolution

Coordinator. In the previous decision, the Commission affirmed the

agency's August 24, 1999 decision dismissing his claim, finding that

the agency's actions at best constituted a preliminary step to taking a

personnel action. The previous decision concluded that no action was

taken by the agency based on the alleged statements of the General Counsel

that complainant was to be removed as Regional Attorney. As such, the

Commission found that complainant failed to state a claim of employment

discrimination.

On request for reconsideration, complainant claims that the Commission's

previous decision involves an erroneous interpretation of fact or law.

In support of his claim of constructive demotion, complainant describes

the work environment at the time of the statements of the General Counsel.

Specifically, complainant contends that the Office of General Counsel

has repeatedly used the �transfer ploy� to remove Regional Attorneys from

their positions. According to complainant the Office of General Counsel

would involuntarily transfer Regional Attorneys, creating a hardship for

them, and resulting in their resignations. In view of this environment,

complainant states that he regarded the General Counsel's statements to

him regarding his impending demotion and removal, as a sign that he was

to be removed from employment.

The Commission finds that complainant's request to reconsider meets the

criterion of 29 C.F.R. � 1614.405(b)(1). It is therefore the decision

of the Commission to grant the request. The previous decision found that

the agency actions and alleged statements by the General Counsel did not

render complainant aggrieved. Upon review of complainant's submissions

and the entire record, it is clear that complainant is raising a claim

of constructive demotion. Generally a forced resignation (whether it

results in a discharge or demotion) occurs when an employer knowingly

allows conditions of discrimination so intolerable that a reasonable

person would have felt compelled to resign. The Commission has held

that, in order to prove a claim of constructive demotion, complainant

must show that: (1) a reasonable person in his position would have found

the working conditions intolerable; (2) conduct which constituted a

violation of anti- discrimination laws created the intolerable working

conditions; and (3) complainant's involuntary resignation resulted from

those intolerable working conditions. Nolen-Frisby v. Department of

Transportation, EEOC Appeal No. 01950312 (May 1, 1997); Moore v. USPS,

EEOC Request No. 05910565 (October 4, 1991); Sprangle v. Valley Forge

Sewer Authority, 839 F.2d 171, 173 (3rd. Cir. 1988). Since complainant

accepted another position allegedly as a result of the environment and

the General Counsel's statements, clearly the action is not a proposal or

preliminary step. Consequently, we find that when his claim is properly

defined, complainant has stated a claim of constructive demotion which

is appropriate for processing.

Finally, we note that the claim of constructive demotion is an action

that can be appealed to the Merit Systems Protection Board (MSPB).

Consequently, on remand, the agency shall resume processing of the present

case as a mixed case complaint pursuant to the appropriate regulations

and the Order below.

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 decision of the Commission in Appeal No. 01997254 and the final agency

decision 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 process the remanded claims in accordance with

29 C.F.R. � 1614.302. 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. 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 (K0900)

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)(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 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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:

Frances M. Hart

Executive Officer

Executive Secretariat

November 9, 2000

Date

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

1In the instant matter, the EEOC is both the respondent and the

adjudicatory authority. The Commission's adjudicatory function is

separate and independent from those offices charged with in-house

processing and resolution of discrimination complaints. For purposes of

this decision, the term �Commission� or �EEOC� will be used when referring

to the adjudicatory authority and the term �agency� will be used when

referring to the respondent part in this action. The Chairwoman has

recused herself from participation in this decision.

2On 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.