01A11451
07-09-2003
David W. Handy, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, (National Guard Bureau) Agency.
David W. Handy v. Department of the Army
01A11451
July 9, 2003
.
David W. Handy,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
(National Guard Bureau)
Agency.
Appeal No. 01A11451
Agency No. T-0101-KY-A-01-01-L
DECISION
Upon review, the Commission finds that complainant's appeal is premature
because the agency has not issued a final decision in the instant matter.
On November 1, 2000, complainant filed a formal complaint of unlawful
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.<1> In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of religion (Independent Fundamental Baptist) when, since
early Spring 2000, he was harassed by his supervisor, culminating in
termination from his position as an Allied Trades Helper with Kentucky
MATES on September 23, 2000.<2>
On November 28, 2000, the agency issued what it deemed a Notice of
Dismissal; however, this notice is problematic for three reasons. First,
the Notice of Dismissal left the agency's disposition of complainant's
termination claim unclear. The agency did not state whether it accepted
the claim for investigation or whether it dismissed the claim, and if so,
on what grounds. Second, the agency improperly fragmented complainant's
claim of harassment. The agency should not fragment, or break up, a
complainant's legal claim during EEO complaint processing, as fragmented
processing compromises a complainant's ability to present an integrated
and coherent claim of an unlawful employment discrimination. See EEO
Management Directive-110 (MD-110), at 5-5 (November 9, 1999). Third, the
agency improperly considered the merits of some of complainant's claims
in finding that complainant did not state a claim, and did not supply any
explanation beyond the conclusory findings that complainant's fragmented
claims were either moot or failed to state a claim. The Commission
reminds the agency that a complaint should not be dismissed for failure
to state a claim unless it appears beyond doubt that the complainant
can prove no set of facts in support of the claim which would entitled
the complainant to relief.
�When an agency dismisses an entire complaint under � 1614.107,
receives a request for an immediate final decision or does not receive
a reply to the notice issued under � 1614.108(f), the agency shall take
final action by issuing a final decision.� 29 C.F.R. � 1614.110(b).
An appeal cannot be filed by a complainant until the agency issues a
�final action or dismissal of a complaint.� 29 C.F.R. � 1614.401(a).
Complainant understandably expresses confusion by the agency's Notice of
Dismissal, dated November 28, 2000, which states, �[T]he following issues
raised in the complaint are dismissed, subject to review and approval
of the dismissal by the [agency].� The record does not contain a final
decision by the agency. Complainant filed his appeal despite the fact
that the agency's decision was not yet final; therefore, we consider
complainant's appeal to be premature.
Due to the agency's inexplicable delay, a final decision still has not
yet been issued in this case. In the interests of justice, we order the
agency to conduct an investigation of complainant's complaint, pursuant
to EEOC Regulation 29 C.F.R. � 1614.108. Following the conclusion of
the investigation the agency must provide complainant with a copy of the
investigative file and shall notify complainant that he has the right to
request a hearing and decision from an administrative judge (AJ) or may
request an immediate final decision pursuant to 29 C.F.R. � 1614.110 from
the agency, within 30 calendar days of receipt of the investigative file.
See 29 C.F.R. � 1614.108(f).
The Commission reminds the agency that compliance with this decision
is mandatory, and, compliance will not be considered complete until the
agency complies with EEOC Regulation 29 C.F.R. � 1614.108(f).
Therefore, complainant's appeal is dismissed because it is premature.
The agency is ordered to process complainant's complaint in its entirety
and to conduct an investigation in compliance with the order below.
ORDER (E0900)
The agency is ordered to process the complaint in accordance with 29
C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file 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. 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.
A copy of the agency's letter of acknowledgment to complainant 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 (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
July 9, 2003
__________________
Date
1By letter dated June 10, 2003, the agency
informed the Commission that the complaint had been settled; however,
the record does not contain any settlement agreement, and there is
no evidence in the record to support the agency's contention that a
settlement agreement exists. We find the copy of a check from the agency
to complainant's attorney in the amount of $500.00 to be insufficient
evidence of the existence of a settlement agreement. Additionally,
the agency has subsequently informed the Commission that there is no
settlement agreement in the instant case. Therefore, the Commission
finds that this case has not been settled, and instructs the agency to
process the complaint as instructed by the Commission in this decision.
2The agency indicates that at the time of complainant's termination, he
was in a probationary trial period. Examples of the alleged harassment
include the failure of complainant's supervisor (S1) to be truthful about
complainant's work performance; S1's statement that complainant's kind
were not wanted at the Kentucky MATES; physical threats by a co-worker
with no action being taken by the supervisor of communications-electronics
shop (S2); verbal threats by S2 regarding complainant's job following
complainant's expression of a religious opinion; being placed to work
with a co-worker for four weeks who S2 had previously told complainant
to stay away from; and the expression of conflicting stories about
complainant by supervisors.