01984617_r
12-10-1999
Larry R. Coffelt, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Larry R. Coffelt, )
Complainant, )
)
v. ) Appeal No. 01984617
) Agency No. CR980294
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
____________________________________)
DECISION
On May 18, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) issued on April 20, 1998, pertaining
to his complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. �621 et seq.<1>
The record reflects that on October 3, 1997, complainant initiated
contact with an EEO Counselor, alleging that on October 3, 1997, he was
told by the regional director, to start to �look for a new home� because
he could no longer remain in his position. The regional director made
several suggestions of positions to which complainant could move and
told complainant that he could not stay in his position because of his
prior protected activity.
Attempts to settle this matter informally failed, and on January 23, 1998,
complainant filed a formal complaint claiming that he was the victim
of unlawful employment discrimination on the bases of his age (over
forty) and in reprisal for prior EEO activity. Complainant's complaint
was comprised of the matter for which he underwent EEO Counseling,
discussed above.
On April 20, 1998, the agency issued a final decision, dismissing
complainant's complaint for failure to state a claim. The agency found
that since the action taken was only a proposal, the complainant cannot
be an aggrieved employee.
On appeal, complainant argues, and the record reflects, that the proposal
to reassign him occurred on December 16, 1998. In addition, complainant
alleges that the agency has attempted to downgrade his status, move his
office space to another agency, eliminate any administrative support
help, exclude him from the Regional Leadership Team and deny his requests
for information. Complainant alleges that these incidents when taken
as a whole have created a hostile work environment.
In the instant case, we note that when a complaint is filed on a proposed
action and the agency subsequently proceeds with the action, the action is
considered to have merged with the proposal. See Siegel v. Department of
Veterans Affairs, EEOC Request No. 05960568 (October 10, 1997); Charles
v. Department of the Treasury, EEOC Request No. 05910190 (February 25,
1991). Therefore, the reassignment is no longer considered a proposal.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified at and
hereinafter referred to as EEOC Regulation 29 C.F.R. �1614.107(a)(1))
provides, in relevant part, that an agency shall dismiss a complaint,
or portion thereof, that fails to state a claim. An agency shall accept
a complaint from any aggrieved employee or applicant for employment who
believes that he or she has been discriminated against by that agency
because of race, color, religion, sex, national origin, age or disabling
condition. 29 C.F.R. �1614.103; �1614.106(a). The Commission's federal
sector case precedent has long defined an "aggrieved employee" as one
who suffers a present harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The only proper questions in determining whether a claim is within
the purview of the EEO process are: (1) Whether the complainant
is an aggrieved employee and (2) Whether he has alleged employment
discrimination covered by the EEO statutes. An employee is �aggrieved�
if he has suffered direct and personal deprivation at the hands of the
employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133
(March 2, 1990). Here, complainant claims that he was reassigned from
his prior position, we find that complainant has identified an injury.
Furthermore, since complainant has alleged that the adverse action was
based on age and reprisal, complainant has raised a claim within the
purview of the EEOC regulations.
Accordingly, the agency's decision to dismiss the complaint for failure
to state a claim was improper and is REVERSED. Complainant's complaint
is REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
We note that on appeal, complainant argues that the agency has attempted
to down grade his status, move his office space to another agency,
eliminate any administrative support help, exclude him from the Regional
Leadership Team and deny his requests for information. Complainant
alleges that these incidents taken as a whole have created a hostile work
environment. This matter was not the subject of the current complaint.
Pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified at and
hereinafter referred to as 29 C.F.R. � 1614.106(d)), the agency, on
REMAND, is ordered to provide complainant with the opportunity to amend
his complaint to include the claims raised for the first time on appeal.
ORDER
The agency is ORDERED to take the following actions:
1. Provide complainant with the opportunity to amend his complaint to
include those claims raised for the first time on appeal in accordance
with 29 C.F.R. � 1614.106(d).
The agency, within fifteen calendar days from the date this decision
becomes final, shall notify complainant of the right to amend his
complaint. Upon receipt of the notice, complainant will have fifteen
calendar days in which to notify the agency of any amendments to his
complaint and the claims he wishes to add, if any.
2. Process the remanded claims in accordance with 64 Fed. Reg. 37,644,
37,656-57 (1999)(to be codified and hereinafter referred to as 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 notice to complainant of the opportunity to amend
his complainant, a copy of the 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
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:
December 10, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Date Equal Employment Assistant1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.