Kathleen M. Kelley, Appellant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionApr 7, 1999
01983123 (E.E.O.C. Apr. 7, 1999)

01983123

04-07-1999

Kathleen M. Kelley, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Kathleen M. Kelley v. Department of Transportation

01983123

April 7, 1999

Kathleen M. Kelley, )

Appellant, )

)

v. ) Appeal No. 01983123

) Agency No. 3-96-050

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

_________________________________)

DECISION

Appellant filed the instant appeal from the agency's February 4, 1998

decision dismissing a portion of appellant's purportedly consolidated

complaint.

The instant matter was the subject of a prior Commission decision

in Kelley v. Department of Transportation, EEOC Appeal No. 01965178

(Nov. 18, 1997). The Commission found that the agency, in a decision

dated May 23, 1996, dismissed a portion of the complaint (two allegations)

on the grounds that appellant had filed a prior grievance. Kelley,

EEOC Appeal No. 01965178. The Commission found that it was not clear

what allegations or complaint(s) were at issue and that appellant was

arguing that the agency had failed to include certain allegations. Id.

The Commission vacated the agency's dismissal of two allegations and

ordered the agency to:

Schedule in writing a meeting between appellant and an EEO Counselor

so an agreement can be reached on the issues in appellant's December

1, 1995 and March 5, 1996 complaints in the event the agency has

consolidated her complaints. After the meeting(s), the Counselor must

issue a new Counselor's report concerning the meeting(s) and defining the

complaint(s). Appellant shall not be required to refile her complaints

of December 1, 1995, and March 5, 1996.

Id.

In the February 4, 1998 decision the agency listed the six allegations

(A1 - A6) that the agency had accepted for investigation and the two

allegations (D1 and D2) that it had dismissed in the May 23, 1996

decision. The agency found that per the EEOC remand Order, the EEO

Counselor, with appellant's input, redefined appellant's allegations.

The agency then stated that appellant raised allegations R1 - R8.

The agency dismissed allegations R2, R4, R5, R6, and R8, for stating the

same claim as A1, A4, A5, A2, and A6, respectively. The agency found that

"[t]hese stipulated, redefined allegations have already been investigated

in the consolidated complaint 3-96-050."

The agency also found that appellant was not aggrieved in allegation R7

(after appellant was off work for eight weeks, appellant's manager did

not reassign appellant's workload and appellant had to complete the

work when she returned to duty). The agency dismissed allegations R1

("appellant's manager allegedly created a hostile and stressful working

environment by treating [appellant] in a disparaging manner including

the instance when [appellant] requested an alternate work schedule

(AWS)?") and R3 (denied opportunities to work overtime) pursuant to 29

C.F.R. �1614.107(d) on the grounds that appellant elected to raise these

matters in a negotiated grievance procedure.

On appeal appellant argues that the agency misdefined the allegations,

omitted allegations, and improperly dismissed allegations R1 - R8.

Appellant states on appeal: "[T]he agency has made no effort to include

the allegations of the third EEOC charge and has altogether ignored

[appellant's] June 3, 1996, objections regarding the agency's failure

to include numerous allegations which were the subject of the first and

second EEOC charges."

The Commission finds that the agency has not clearly identified in the

decision what complaints comprise the "consolidated complaint" at issue

in the agency decision. The parties still have not reached an agreement

on the issues. The record does not clearly indicate that a meeting ever

was held between the parties or that appellant was provided with the

opportunity to attend such a meeting. Upon examination of the entire

record the Commission finds that it is not clear what allegations are

at issue and what complaint(s) is (are) at issue.

Many of the allegations newly defined by the agency (i.e., R1 - R8) simply

appear to be restatements of the accepted allegations (A1 - A6). It is

possible that appellant did not mean to raise these allegations twice.

Furthermore, it appears that many of the allegations defined by the

agency are part of a general claim that appellant was subjected to a

hostile working environment. In such an instance there is no need to

treat such incidents of alleged harassment as separate allegations of

discrimination; rather such allegations should be considered only in

the context of the harassment claim.

The Commission finds that because the parties have not yet reached an

agreement on the allegations, what complaint(s) is (are) at issue is

not clear from the record, the allegations at issue are not clear from

the record, and there is no clear indication that the parties met to

clarify the allegations, the instant matter is appropriately remanded

for one more opportunity to clarify the allegations. The agency shall

schedule a meeting with appellant to clarify the allegations. The agency

shall clearly indicate to appellant and in any subsequent decision what

complaint(s) is (are) at issue. The agency shall request that appellant

provide a list of numbered allegations which appellant believes are being

raised in each complaint the agency states is at issue. Appellant shall

fully cooperate with the agency's attempt to clarify the allegations.

The agency shall issue a decision defining the allegations, stating

what specific complaint(s) is (are) being defined, and, if appropriate,

dismissing all or a portion of the allegations.

The agency's decision dismissing a portion of the consolidated complaint

is VACATED and we REMAND the matter to the agency for further processing

in accordance with this decision and applicable regulations.

ORDER

The agency shall:

Contact appellant to schedule a meeting (or meetings) to clarify the

complaint(s) at issue. Prior to the meeting the agency shall inform

appellant in writing of what complaint(s) is (are) at issue in the

instant matter. A copy of the agency letter informing appellant of the

need to schedule a meeting and informing appellant of the complaint(s)

at issue shall be placed into the record.

The agency shall, prior to the meeting in provision 1 of this Order,

request that appellant provide the agency with a list of numbered

allegations which she believes are at issue in the instant matter.

Place evidence into the record showing that the meeting to clarify the

complaint referenced in provision 1 of this Order actually occurred and

showing what transpired at that meeting. If appellant refuses to meet

with the agency, then the agency shall place evidence into the record

documenting its attempts to have appellant attend such a meeting.

After the meeting(s) to clarify the allegations, the agency shall,

within 90 days of the date this decision becomes final, issue a decision

defining the allegations, stating what specific complaint(s) is (are)

being defined, and, if appropriate, dismissing all or a portion of

the allegations.

In the decision referenced in provision 4 of this Order the agency shall

specifically address each numbered allegation brought forth by appellant

as a result of this remand. The agency shall find for each of the

numbered allegations proposed by appellant as a result of this remand

that: (1) the allegations are properly included in the complaint(s)

at issue (whether or not such allegations may be dismissed); (2) the

allegations are not included in the complaint(s) at issue; or (3) the

allegations are not properly defined by appellant (in this instance the

agency must explain why appellant has misdefined the allegation and must

provide the agency's view of the proper definition of the allegation).

A copy of the agency's new decision defining the complaint must be sent

to the Compliance Officer as referenced herein.

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 (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:

April 7, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations