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