01983350
01-12-2000
William L. Rhinesmith, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
William L. Rhinesmith v. Department of the Treasury
01983350
January 12, 2000
William L. Rhinesmith, )
Complainant, )
)
v. ) Appeal No. 01983350
) Agency No. 98-1105
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's January 28, 1998 decision
dismissing the complaint on the basis of failure to state a claim is
not proper pursuant to the provisions of 29 C.F.R. �1614.107(a).
The record shows that Complainant sought EEO counseling alleging that
he had been discriminated against on the bases of race (Caucasian),
color (white), sex (male), age (DOB 12/14/48), physical disability
(coronary/hypoglycemia/stress related depression) and reprisal for
prior EEO activity when: (1) management denied his wife's<1> request
for advance sick leave; and, (2) management issued a memo requesting
specific medical documentation which caused Complainant to spend $250.00
to provide the information.
Complainant subsequently filed a formal complaint of discrimination
alleging that he had been discriminated against on the bases of race,
color, sex, age, reprisal and physical disability when the agency
subjected him to a pattern of harassment, which includes: (a) management's
request for extensive medical documentation of his wife's disabilities;
and, (b) financial hardship as a result of the agency's refusal to
reimburse his wife's work benefits. Finally, Complainant claims that the
harassment and retaliation has increased since he sought EEO counseling.
The agency issued a final decision dismissing the complaint on the grounds
of failure to state a claim after finding that while Complainant's
wife may have standing to file an EEO complaint, Complainant was not
rendered aggrieved.
On appeal, Complainant contends that "in the past year, [he] was given the
lowest evaluation he had ever received in his twelve years of employment".
Complainant further contends that "for many years" he has been subjected
to a pattern of discrimination, but that after seeking EEO counseling
regarding the present matter, the harassment against him has increased.
A review of the complaint and the record shows that Complainant alleged
that as a physically disabled white male employee over the age of 40,
he has been the target of the agency's continuous harassment. As an
example of the harassment against him, Complainant stated that management
made continued and unreasonable requests for medical documentation of
his wife's disabilities, even though the documentation in question had
already and consistently been provided by both Complainant and his wife.
He further alleged that the agency's continued requests for documentation
resulted in additional and burdensome medical expenses which contributed
to his financial hardship. Finally, Complainant alleged that he felt
harassed by the financial hardship imposed on him and his family as
a result of both the agency's continued and unreasonable requests
for documentation and its refusal to reimburse the expenses created
by its requests. Moreover, Complainant claims that after he decided
to seek counseling regarding these issues, the harassment against him
increased and he was issued the lowest evaluation of his 12 year career
with the agency.
We find that Complainant not only has alleged a loss to a term, condition
or privilege of his employment, i.e., the right to work in an environment
free from harassment. Complainant has also alleged that he has been
subjected to reprisal (low evaluation) as a result of his attempts
to resolve his concerns through EEO counseling. The Commission has
previously held that if an employee alleges a personal harm and employment
discrimination on a basis covered by EEO statutes, then the agency must
accept the complaint for processing, regardless of what it may think of
the merits. Odoski v. Department of Energy, EEOC Appeal No. 01901496
(April 16, 1990).
Moreover, the retaliation provisions of the EEO statutes prohibit
retaliation against someone so closely related to or associated with a
person, such as Complainant, who exercises his statutory rights that
it would discourage or prevent a person from pursuing those rights.
It would therefore be unlawful for an agency to retaliate against an
employee because his or her spouse, who is also an employee, pursued the
EEO complaint process. See e.g., De Medina v. Reinhardt, 444 F. Supp. 573
(D.D.C. 1978). Retaliation against a close relative of an individual
who opposed discrimination can be challenged by both the individual who
engaged in protected activity and the relative, where both are employees.
Moreover, the Commission has held that a complainant states a claim
when he or she alleges disability discrimination based upon his or her
association with a person with a disability. Gholston v. Department
of the Army, EEOC Appeal No. 01941796 (July 5, 1994), request to reopen
dismissed, EEOC Request No. 05940857 (May 23, 1996), Here, Complainant,
an agency employee, claimed that his wife, also an agency employee who
Complainant claims suffers from a disability, was denied a request for
advance sick leave. He further claims that he had expenses as a result of
the agency's request for additional and specific medical documentation.
These claims are sufficient to render him an aggrieved employee.
Because Complainant has claimed that the adverse actions were based on
race, color, sex, age, disability and reprisal, he has raised claims
within the purview of EEOC Regulations. Accordingly, the final agency
decision is REVERSED. The complaint is REMANDED for further processing
in accordance with this decision and applicable regulations.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in 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 letter of acknowledgment to complainant and an
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 (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).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
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:
Jan. 12, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
___________ _________________________________
DATE
1 The record shows that Complainant's wife is an agency employee too. It
further shows that she also filed a complaint of discrimination.