01974556
11-16-1998
Ira Shelton, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Ira Shelton v. Department of the Army
01974556
November 16, 1998
Ira Shelton, )
Appellant, )
)
v. ) Appeal No. 01974556
) Agency No. FO9703H0100
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
________________________________)
DECISION
INTRODUCTION
On May 13, 1997, Ira Shelton (hereinafter referred to as appellant)
filed an appeal with the Equal Employment Opportunity Commission (EEOC)
from the Department of the Army's (hereinafter referred to as the agency)
final decision on her EEO complaint. The Commission accepts this
petition in accordance with EEOC Order 960, as amended.
ISSUE PRESENTED
The issue presented is whether the agency properly defined the allegations
in appellant's complaint.
BACKGROUND
On March 4, 1997, appellant--a GS-11 Personnel Management
Specialist--contacted an EEO counselor alleging that the agency
discriminated against her on the bases of her race/color (black), sex
(female), age (58), and reprisal (prior EEO activity) when management
officials relocated her to another work area. Thereafter, appellant
filed an EEO complaint regarding the above issue. Appellant attached
to her complaint form nine pages in which she explained the facts and
circumstances surrounding the alleged discriminatory event. The agency
requested clarification of certain points raised in appellant's attachment
and appellant responded to the request.
In its final decision (FAD), the agency defined the allegations in
appellant's complaint as follows:
a) On February 12, 1997, the Colonel [met] with [appellant and
four agency officials]....[The] meeting was [appellant's] official
notification of HR Office relocation to two (2) open cubicles on the 10th
floor...Lt. Colonel responded...yes I'll fix it for her...meaning his
executive assistant....[Appellant] indicated that [her] interpretation
of the above meant an 'UPGRADE.'
b) 28 Jan 1997 [appellant] was approached by...[the] Deputy
Commander....Since [her] previous interactions with him wer[e]o.k.[,]
[appellant] was alarmed when he approached by coming to [her] office,
asked [her] to go up to the 10th and 11th floors to see if there was
any vacant space there....
c) Management has a policy of always standing together...unless the person
that may need support is African-American (Black)...the discrimination,
hostile work environment, harassment has been going on for some time
now, and escalated with the actual act of relocating [her] office...a
dysfunctional area. [Appellant] assert[ed] that this would not have
happened to a white male or female working in [her] position....
d) Lt. Colonel...sends message dated 22 November 1996 responding to [the]
Major's comment to [appellant] stating there was no reprisal involved, he
needed this space...[Appellant] should move to the 10th or 11th floor...,
with SPD employees so he can have space for his executive assistant he
is recruiting.
e) [Appellant] was first aware of the hostile work environment on 24
March 1997 when [they] moved. Management...knew all along and [appellant]
told them during the period March 24-28th....[The] Chief of Real Estate
wrote a memorandum expressing his concerns and noting the space was
not adequate resulting in a much poorer service from [appellant's]
office...[An agency employee] told [appellant] the employees in the area
were openly hostile to him when he attempted to move items, etc....
f) Prior to the collocation move to 333 Market St. all corps employees
[were] assigned to the Main St. Ofc...[appellant] was authorized [a]
private office, in fact, the documents showed [that she] was authorized
two private offices....[Her] space got dropped from the plan....
The agency accepted allegation a but rejected the remaining allegations
for the following reasons: b--no precomplaint counseling/failure to
exhaust administrative remedies; c--no demonstration of personal injury;
d--untimely EEO contact; e--no precomplaint counseling/failure to exhaust
administrative remedies and no demonstration of personal harm; and,
f--untimely EEO contact.
In response to the agency's acceptance of allegation a, appellant advised
that the agency had "inappropriately read the allegation literally and
narrowly disregarding the pertinent facts in the issue as stated."
Appellant also filed the instant appeal from the dismissal of the
remaining allegations.
The agency did not submit a response to appellant's appeal.
ANALYSIS AND FINDINGS
The EEO Counselor's report showed that the issue of which appellant
complained was as follows:
[Appellant] stated that she was being harassed and forced to move from
her present office location on the 8th floor executive area of the San
Francisco District (SPN), to an inappropriate location consisting of
two open cubicles on the 10th floor of the South Pacific Division (SPD)
to make room for another employee (new position in executive office)
not of her protected group. [Appellant] stated she alone was being forced
to move while other non-SPN employees adjacent to the District executive
office area, were not.<1> [Appellant] felt she was the target of reprisal
for her knowledge and participation in another unrelated EEO complaint.
A review of the attachment to appellant's EEO complaint showed that
appellant was attempting to describe the facts and circumstances
surrounding the allegedly discriminatory event, i.e., her relocation
to another work area, and to give her reasons for believing that the
agency's actions were discriminatory.
The Commission finds that the agency erred in breaking out parts of
appellant's narrative and defining them as "allegations" to be accepted
or rejected. Consequently, the agency's final decision dismissing these
"allegations" is reversed. During the investigation of appellant's
complaint, the agency shall consider appellant's narrative in light of
the issue defined by the EEO counselor.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
REVERSE the agency's final decision.
ORDER
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded complaint 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 acknowledgement 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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:
Nov. 16, 1998
_______________ ______________________________
Date Ronnie Blumenthal, Director
Office of Federal Operations
1In her narrative, appellant alleged disparate treatment, identifying at
least one white female employee who was not forced to move out of her work
space.