0520110034
03-31-2011
John I. Coleman, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
John I. Coleman,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Request No. 0520110034
Appeal No. 0120102031
Agency No. ARDETRICK09NOV05898
DECISION
Complainant timely requested reconsideration of the decision in John I. Coleman v. Department of the Army, EEOC Appeal No. 0120102031 (September 3, 2010). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
The record establishes that Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of age (over 40) when: (1) on December 5, 2009, Complainant's supervisor reassigned his work schedule from a 6:30 a.m. start time to an 8:00 a.m. start time every other week, and reassigned his shop personnel without informing him; (2) on November 4, 2009, Complainant received a Letter of Reprimand from his supervisor regarding his use of profanity; (3) on November 11, 2009, Complainant received a proposal for suspension from his supervisor; (4) on November 13, 2009, Complainant received an email from his supervisor stating that he had not followed appropriate security protocol in reference to personnel information; and (5) on December 15, 2009, Complainant received an email from his supervisor stating that the supervisor would not authorize leave forms he had submitted.
The Agency issued a final decision dismissing the entire complaint pursuant to 29 C.F.R. � 1614.107(a). Specifically, the Agency dismissed (1), (4), and (5) for failure to state a claim and as moot, and dismissed (2) and (3) as raised previously in a negotiated grievance procedure. Complainant filed an appeal with this Commission, which was docketed as EEOC Appeal No. 0120102031.
In Coleman v. Dep't of the Army, EEOC Appeal No. 0120102031, the Commission affirmed the Agency's dismissal of (3), (4) and (5), and reversed its dismissal of (1) and (2). The Commission remanded (1) and (2) to the Agency for further processing in accordance with 29 C.F.R. � 1614.108. Complainant filed the instant request for reconsideration
In his reconsideration request, Complainant stated that while the appellate decision addressed his individual claims of disparate treatment, it failed to address his claim of ongoing hostile work environment harassment. Further, Complainant stated that his suspension was no longer in proposed status when he filed his appeal.
After considering the request for reconsideration, the previous decision, and the entire record, and in light of the new information that the proposal for suspension was finalized and became an actual suspension, we find that (3) should be remanded to the Agency for further processing. Where a complaint is filed on a proposed action and an agency subsequently proceeds with the action, the action is considered to merge with the proposal. See Siegel v. Dep't of Veterans Affairs, EEOC Request No. 05960568 (October 9, 1997). Further, as clarification for our appellate decision, we find that the investigated claims should also include one of hostile work environment harassment. We note that (4) and (5), although dismissed as separate individual claims, should be used as background evidence to support Complainant's claim of harassment.
Accordingly, we REMAND the matter for further processing in accordance with this decision and the Order below.
ORDER (E0408)
The agency is ordered to process the remanded claims (hostile work environment harassment and suspension) in accordance with 29 C.F.R. � 1614.108 et seq. 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 (K0610)
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 77960, Washington, DC 20013. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
___March 31, 2011_____
Date
2
05-2011-0034
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
05-2011-0034