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.