0120062364
09-12-2007
Carolyn E. Williams, Complainant, v. Samuel W. Bodman, Secretary, Department of Energy, Agency.
Carolyn E. Williams,
Complainant,
v.
Samuel W. Bodman,
Secretary,
Department of Energy,
Agency.
Appeal No. 01200623641
Agency Nos. 97183HQDP & 98093HQDP
DECISION
On February 27, 2006, Carolyn E. Williams (complainant) filed an
appeal from the agency's December 21, 2005, final decision concerning EEO
complaint No. 97183 (C1).2 On April 27, 2006, complainant filed an appeal
from the agency's April 6, 2006, final decision concerning EEO complaint
No. 98093 (C2). The complaints claimed employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq; the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq; and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. Complainant's appeals are deemed timely and are
accepted pursuant to 29 C.F.R. � 1614.405(a). For the reasons set forth
below, this matter is returned to the agency for further investigation,
and issuance of a consolidated final decision in accordance with this
decision and EEOC Request No. 05A20614 (July 14, 2002).
This matter comes before us as a result of the Commission's decision in
EEOC 05A20614, et al. (June 14, 2002). In that decision, the Commission
consolidated C1 and C2, vacating all previous decisions regarding C1 and
C2, including agency actions and prior EEOC decisions.3 The decision
found that the agency had improperly fragmented complainant's complaints,
in that, the claims raised in the two complaints "concern various acts
of purported discrimination against complainant by the same two agency
officials (her immediate supervisor (S1) and her second-level supervisor
(S2)) during an approximately two-year time period." Thus, the decision
concluded that the two complaints constituted a single claim and that
the agency "erred by failing to consolidate these complaints prior to
rendering a final decision."
The Commission has long voiced its concerns that agencies, when confronted
with a complaint involving multiple claims or multiple complaints with
multiple claims, may possibly fail to recognize the "pattern aspect" of
the complainant's claims and define the issues in a piecemeal manner,
ignoring the underlying analogous theme and claim of harassment that
unites them. Brown v. Department of the Army, EEOC Request No. 05970558
(September 15, 2000); Drake v. Department of the Air Force, EEOC Request
No. 05970689 (March 29, 1999). In the Preamble to the 1614 Regulations,
effective November 9, 1999, the Commission identified fragmentation
of EEO complaints as a problem in processing federal sector complaints
and initiated certain reforms, including changes to the EEO Management
Directive-110 (November 9, 1999). Final Rule, 29 C.F.R. Part 1614 (July
12, 1999). In that statement, the Commission declared its concern that
fragmentation "can improperly render non-meritorious otherwise valid
and cognizable claims." Id.
Having found that the agency "erred" when it did not consolidate the
claims raised in the two complaints and when it failed to determine
that the claims alleged a pattern of discrimination, the Commission
vacated the agency's decisions on C1, dated June 22, 2000, and on C2,
dated May 24, 2000. It remanded the complaints "to be re-adjudicated as
a consolidated claim," in addition to two claims the decision ordered be
processed.4 The decision concluded that "to do otherwise would result
in an improper fragmentation of the claims raised by complainant in
alleging a pattern of discrimination." [emphasis supplied]
Specifically, the Commission ordered the agency to take the following
actions:
1. The agency shall acknowledge to the complainant that it has received
the remanded claims, to include the "RIF claim" and the 1996 performance
rating claim, as described above, as well as all of the claims raised by
complainant in complaint #97(183) and complaint #98(093), within thirty
(30) calendar days of the date this decision becomes final. The agency
shall also notify complainant that it is henceforth eliminating "#98(028)"
as a reference number from complainant's EEO matters, as described above.
2. The agency shall fully investigate complainant's RIF claim, and in
conjunction with this investigation, conduct any further investigation
necessary on the additional claims raised in complaint # 97(183) and
complaint # 98(093), with the aim of addressing all of complainant's
claims as a consolidated complaint alleging a pattern of discrimination.
3. The agency shall issue to complainant a copy of the resulting
investigative file addressing all of the claims herein as a consolidated
claim, and also shall notify complainant 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.5 If the complainant requests a final decision without a hearing,
the agency shall issue a final decision within sixty (60) days of receipt
of complainant's request. [emphasis supplied]
For many reasons, the agency failed to comply with all of the Commission's
order. In the first instance, the Commission directed the agency to
combine the two complaints and re-adjudicate them "as a consolidated
claim." The Order defined the remanded matter as "all of the claims
raised" in the two complaints plus two issues that were ignored by the
agency, i.e., the "RIF claim" and the 1996 performance rating claim.
The agency, however, issued separate decisions, failed to "re-adjudicate"
the complaints as a consolidated complaint, and did not complete its
processes within 180 days.6 In fact, the agency repeated the earlier
improper fragmentation.
In addition, although the cover page of the Supplemental Report of
Investigation (SROI) identified both complaints, review of the SROI
reveals that no attempt was made to combine the two complaints and
investigate them as a consolidated claim of harassment, i.e., no new
witnesses, such as complainant's former co-workers, other supervisors,
higher-level managers, or personnel specialists, were interviewed; no
new medical evidence was sought to show the progress of complainant's
cognitive abilities; no attempt to intermingle the events identified
in both complaints was made; and, as for the two issues ignored by
the agency, only limited historical documentation was included.7 The
only "new" material in the SROI was a statement from S1, who largely
reiterated her previous statements, and a statement from an agency witness
addressing the RIF process in general terms.8 Complainant submitted
briefs and statements to the record, including her rebuttal statements
in the SROI, and neither the investigator nor the agency investigated
or answered any of the matters she raised.
Our decision of July 14, 2002, held that the agency erred when it failed
to consolidate C1 and C2 into a single claim of harassment/hostile work
force, and that claim required different treatment than traditional
disparate treatment claims.9 This decision finds that the agency has
not yet complied with the Order from that decision. Although we are
reluctant to remand these complaints, to avoid additional fragmentation
of complainant's EEO claims, we are left with no option other than to
do so. The agency is hereby notified that if it fails to comply with
the Commission's Order below, or show good cause why it cannot do so,
the Commission may draw an adverse inference against the agency, issue
a decision fully or partially in favor of the complainant, or take such
other action(s) as appropriate. 29 C.F.R. � 1614.404(c).
CONCLUSION
Accordingly, the agency's decisions are VACATED. The agency is ordered
to comply with the Order below.
ORDER TO SUPPLEMENT THE RECORD
A. Within fifteen (15) days of the date this decision becomes final,
the agency shall acknowledge to the complainant that it has received the
remanded claims and that it will issue a consolidated decision on her
claim of harassment/hostile work environment consisting of all of the
allegations raised by complainant in complaint #97(183) and complaint
#98(093), including the "RIF claim" and the 1996 performance rating
claim.
B. Within ninety (90) calendar days of the date this decision becomes
final, the agency (1) shall conduct and complete a second supplemental
investigation addressing all of complainant's claims as a consolidated
complaint alleging a pattern of harassment/hostile work environment
discrimination, (2) shall transmit the report to complainant, and (3)
shall notify complainant of the appropriate rights pursuant to 29 C.F.R. �
1614.108(f), unless the matter is otherwise resolved prior to that time.
If complainant requests a final decision without a hearing, the agency
shall issue a final decision within thirty (30) days of receipt of
complainant's request.
C. In accordance with Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (November 9, 1999), the agency shall
give priority to this remanded matter in order to comply with the
time frames contained in this Order. The Office of Federal Operations
might issue sanctions against the agency if it determines that it is
not acting in good faith and making reasonable efforts to comply with
the Commission's Order.
D. The agency is further directed to submit a report of compliance,
as provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include all documentation generated by
this Order To Supplement The Record and any other relevant documents
demonstrating that the agency has complied with this Order.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____9/12/07______________
Date
1 Due to a new data system, this case has been re-designated with the
above appeal number.
2 According to complainant, she received the agency's decision on January
31, 2006.
3 In February 1996, complainant was assigned to the agency's Human and
Administrative Resources Group of Defense Programs (DP-44), located at
agency headquarters (HQ) in Washington, D.C. She attended training for
her new position at the agency's Germantown (MD) campus, riding the
agency shuttle bus. In late April 1996, the bus was in an accident,
and complainant sustained a serious head injury; after convalescence,
she returned to work. In the two complaints herein, complainant claimed
that her immediate supervisor (S1) and her second-level supervisor (S2)
did not provide her with reasonable accommodations for her cognitive
disabilities, tried to force her to take a test to assess her skills,
denied her training opportunities, refused to reassign her to a more
appropriate position series based on her skills and experience, and
engaged in numerous irregularities regarding her 1996 annual evaluation.
4 The decision also found that the agency had improperly ignored or
dismissed claims regarding complainant's 1996, performance evaluation
in C1 and another regarding a reduction-in-force (RIF) from C2.
5 It is not clear that the agency notified complainant of her right to
request either a hearing or a final decision without a hearing.
6 The Commission's decision became final thirty days following its
issuance on July 14, and the agency was given 180 days to comply. We note
that the agency's letter to complainant was dated July 8, the investigator
received the case on August 2, and the report of investigation is dated
June 26, 2003. The 180-day period expired about January 15, 2003.
7 For example, although the record shows that complainant's position was
targeted, the SROI does not contain an explanation of why her position
was subjected to the RIF.
8 The SROI informed that S2 died in 1999.
9 See, e.g., Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994); Meritor Savings Bank
FSB v. Vinson, 477 U.S. 57 (1986); Flowers v. Southern Reg'l Physician
Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp.,
247 F.3d 169 (4th Cir. 2001); Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982); Rideout v. Department of the Army, EEOC Appeal No. 01933866
(November 22, 1995).
??
??
??
??
2
0120062364
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120062364