William L. Rhinesmith, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJan 12, 2000
01983350 (E.E.O.C. Jan. 12, 2000)

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.