01992893
11-08-1999
Leonard A. Mobley, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Leonard A. Mobley v. Department of Transportation
01992893
November 8, 1999
Leonard A. Mobley, )
Appellant, )
)
)
v. ) Appeal No. 01992893
) Agency No. DOT-6-98-6101
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision ("FAD") concerning 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. The final agency decision was
dated January 26, 1999. The appeal was postmarked February 26, 1999.
Accordingly, the appeal is timely (see, 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issues on appeal are:
I. Whether the agency properly dismissed allegations (1), (2), (3), (4),
(5), (6), (7), (8), (9), (10), (11) and (13) for stating the same claim
that had been raised in a previous complaint.
II. Whether the agency properly dismissed allegations (12), (14), and (15)
for failure to bring the matter to the attention of the EEO counselor.
III. Whether the agency properly dismissed allegation (16) for failure
to state a claim.
BACKGROUND
The record indicates that on March 23, 1998, appellant initiated contact
with an EEO Counselor regarding his complaint. Informal efforts to resolve
his concerns were unsuccessful. On June 9, 1998, appellant filed a
formal complaint, alleging that he was the victim of unlawful employment
discrimination on the Reprisal for EEO counselor contact in May 1997.
On January 26, 1999, the agency issued a final decision dismissing
appellant's complaint of retaliation. The agency referred to the
dismissed allegations as follows:
(1) The Western-Pacific Region Air Traffic Division and Assistant Division
Managers showed preference and favoritism to white male cronies.
(2) You were ostracized, there was no compliance with the provisions
of a previous EEO settlement agreement and you were not selected for
promotion while white males were provided unfair advantage and promotion
through career enhancing details/temporary promotions in direct conflict
with merit principles.
(3) Your Division Manager stopped speaking to you and did so only in
response to your initiating verbal or cc: mail comments about job issues.
(4) You received negative feedback from the assistant division manager
in early July 1997 alleging that it was your fault that the air traffic
division did not have a diverse managerial workforce.
(5) An opening for the acting assistant division manager occurred in
July 1997 and the air traffic division manager selected the air traffic
manager from San Francisco Tower, to be followed by the air traffic
manager from Phoenix TRACON and Burbank Tower, respectively. All of the
aforementioned managers were white and are cronies of Mr. Williams and
none of them had the experience of acting in the position in the past,
whereas you served as acting division manager on many occasions.
(6) You bid on the permanent assistant manager position and you were
not selected even though you had prepared yourself to assume the most
complex responsibilities in the air traffic service. John Clancy, whom
Mr. Williams said on many occasions was not a good manager, was selected
for the position.
(7) On September 19, 1997 Mr. Williams told you that he knew that you had
a settlement agreement which required that he provide you with certain
information on non-selections. However, he said that he was not prepared
to give you that information at that time and would do so later, but to
date he had not provided you with the information.
(8) Even though your EEO complaint contained an allegation that you
had not received a performance appraisal rating for 1996, you have not
received a rating for 1997 that was due in October 1997
(9) After selecting Mr. John Clancy to the Assistant Division Manager
position, Mr. Williams proposed establishing a management policy board
consisting of all white male cronies to assist him in making policy
decisions that affect all employees. The assistant division manager nor
the branch managers would have been a part of the policy decision process.
This would have effectively eliminated yours and other branch managers'
authority and empowerment to make decisions defined in your position
descriptions.
(10) After contacting the EEO counselor, you were not allowed to act as
division manager in Mr. Williams absence as other branch managers and
employees were.
(11) You have not been allowed to participate on manager selection panels
as other branch managers have been allowed.
(12) With less than three weeks before his retirement, Mr. Williams would
not allow you to select the best-qualified candidate for the manager
of the airspace project office position that worked directly for you.
Instead, Mr. Williams directed you to select a less qualified candidate
in order to create a vacancy for a crony to be selected to a lower level
position, save pay, and move at government expense before he retired.
(13) At the same time as his announced retirement, Mr. Williams announced
the promotion of the manager of the Burbank tower to the acting assistant
division manager position. Although career enhancing, there was no
solicitation of interest or competition on merit principles. You were
by far the best-qualified but was not considered nor allowed to compete.
(14) After announcing his retirement in three weeks, Mr. Williams
reassigned the airspace project office out of your branch, to the
operations branch. This act occurred in spite of clear direction from
air traffic headquarters that the airpspace project office function be
assigned to the airspace branch.
(15) After announcing his retirement in three weeks and stating that the
budget was limited, Mr. Williams presented one of his personal friends and
cronies with a sizable cash award; the third such award in the last year.
(16) You requested similar budget allocation of funds as other branch
managers and received less than twenty five percent of what other branches
received.
ANALYSIS AND CONCLUSION
With regard to allegations 1 through 11 and 13, the agency dismissed them
for stating the same claim that had been raised in a previous complaint.
The agency contends that the issues in Complaint Number DOT-6-97-6112
are the same as the issues presented in the instant case. After
reviewing Complaint DOT-6-97-6112, and supporting documents we agree.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
Dismissal of allegations (1), (2), (3), (4), (5), (6), (7), (8), (9),
(10), (11) and (13) is therefore affirmed.
With respect to allegations (12), (14), and (15) the agency dismissed them
for lack of counselor contact. EEOC Regulation 29 C.F.R. �1614.107(b)
states, in pertinent part, that an agency shall dismiss a complaint or
portion thereof which raises a matter that has not been brought to the
attention of an EEO Counselor, and is not like or related to a matter
on which the complainant has received counseling.
The agency seeks to dismiss these claims pursuant to a purported
agreement. The agreement between agency and the appellant purports to
reject all allegations occurring outside of the December 15, 1998 and
January 30, 1999 time frame. This is the agency's sole basis of dismissal
of allegations (12), (14), and (15). We cannot enforce the agreement.
On the instant record the Commission cannot enforce the purported
agreement. The agency does not provide evidence of an agreement and
the appellant denies the existence of the agreement. The agency has not
supported dismissal of the allegations on other grounds. Accordingly, the
dismissal of allegations (12), (14), and (15) is reversed and we remand
allegations (12), (14) and (15) for further processing in accordance
with this decision and applicable regulations.
With respect to allegation (16), the agency dismissed the claim for
failure to show harm. 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). An "aggrieved employee" is one who suffers
such harm or loss with respect to a term, condition, or privilege of
employment and for which there is a remedy. Riden v. Department of
the Treasury, EEOC Request No. 05970314 (October 2, 1998), citing,
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
21, 1994).
In the instant case the appellant alleges that he was denied the same
operating budget that was allocated to other similarly situated managers.
If, in reprisal for protected activity, the appellant was given a
reduced budget to manage then, the appellant suffered a loss within the
purview of the regulations. Accordingly, the dismissal of allegation
(16) is reversed and we remand allegation(16) for further processing in
accordance with this decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations (12), (14),
(15), and (16) in accordance with 29 C.F.R. �1614.108. The agency shall
acknowledge to the appellant that it has received the remanded allegations
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to appellant a copy of the investigative file and
also shall notify appellant 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 appellant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. If you file
a request to reconsider and also file a civil action, 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:
11/08/1999 ____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations