William Schramm, Appellant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
01993962 (E.E.O.C. Nov. 4, 1999)

01993962

11-04-1999

William Schramm, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


William Schramm, )

Appellant, )

)

v. ) Appeal No. 01993962

) Agency No. DOT 4-99-4038

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

______________________________)

DECISION

On March 4, 1999, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) issued on March 17, 1999, pertaining

to a complaint of unlawful employment discrimination pursuant to Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et

seq. The Commission accepts appellant's appeal in accordance with EEOC

No. 960.001.<1>

The record reflects that on December 27, 1998, appellant initiated

contact with an EEO Counselor. During the counseling period, appellant

alleged that he has been subjected to a hostile work environment when: (1)

management, on several occasions, failed to approve schedule changes that

would remove appellant from working with a co-worker who was harassing

him and (2) that a co-worker on November 15, 1998 accused appellant of

smoking in a confrontational manner.

Appellant, on or about March 1, 1999, filed a formal complaint alleging

that he was the victim of unlawful employment discrimination on the basis

of reprisal (prior EEO activity). Appellant's complaint was comprised

of the matter for which he underwent counseling, discussed above.

The agency, on March 17, 1999 issued a final decision dismissing above

allegation two of appellant's complaint for failure to state a claim.

The agency found that the above allegation was not sufficiently severe

or pervasive to create a hostile work environment and that the settlement

agreement of February 19, 1999 fully resolved the matter.

On appeal, appellant, through his attorney, argues that allegation two

is part of a series of acts, that when taken together, constitute a

hostile work environment. Appellant further alleges that the settlement

agreement of February 19, 1999 does not constitute complete settlement

of the issues of this case.

The agency dismissed allegation two for failure to state a claim.

In his complaint and on appeal, appellant alleges that allegations one

and two were a series of events which created a hostile work environment.

Instead of treating these events as incidents of the claim of harassment,

however, the agency looked at them individually. Thus, we find that

the agency acted improperly by treating matters raised in appellant's

complaint in a piecemeal manner. See Meaney v. Department of the

Treasury, EEOC Request No. 05940169 (November 3, 1994) (an agency should

not ignore the "pattern aspect" of a complainant's allegations and define

the issues in a piecemeal manner where an analogous theme unites the

matter complained of). Consequently, when appellant's allegations are

viewed in the context of appellant's complaint of harassment, allegation

two states a claim and the agency's dismissal of this allegation for

failure to state a claim was improper.

The agency, in their reply to appellant's appeal, claims that the

settlement agreement of February 19, 1999 resolved allegation two.

After review of the agreement, the Commission finds that it in no way

limits appellant from filing a complaint on the above issues. Therefore,

the agency's argument on this ground is hereby rejected.

Accordingly, the agency's decision to dismiss allegation two was improper

and is REVERSED. Appellant's complaint is REMANDED to the

agency for further processing in accordance with this decision and

applicable regulations.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. 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 acknowledgment 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 RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST BE

FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive

this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date

you receive a timely request to reconsider filed by another party.

Any argument in opposition to the request to reconsider or cross request

to reconsider MUST be submitted to the Commission and to the requesting

party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the

request to reconsider. See 29 C.F.R. �1614.407. All requests and

arguments must bear proof of postmark and 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 filed on the date

it is received by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

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 Carlton M. Hadden, Acting Director

1 Since the agency did not supply a copy of a certified mail

return receipt or any other material capable of establishing

the date appellant received the agency's final decision, the

Commission presumes that appellant's appeal was filed within

thirty (30) days of receipt of the agency's final decision. See,

29 C.F.R. �1614.402.