01982504
06-09-1999
Mark A. Hood, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Mark A. Hood v. Department of Transportation
01982504
June 9, 1999
Mark A. Hood, )
Appellant, )
) Appeal No. 01982504
v. ) Agency No. DOT-3-98-3010
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision 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
14, 1998, and received by appellant on January 17, 1998. The appeal
was postmarked on February 10, 1998. 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 issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim.
BACKGROUND
Appellant filed a formal complaint on November 11, 1997, alleging
discrimination on the bases of sex/sexual harassment (male) and religion
(Baptist/Catholic). He alleged that on December 8, 1996, he discovered
child pornography on a co-worker's computer, which he reported to
management, and that in the subsequent eight months he was the victim
of rumors that suggested that he was involved in downloading the images
onto the co-worker's computer. He claimed this created a hostile work
environment, which caused him to have to transfer from Indiana to a
different facility with the same agency in New York state. In its final
agency decision, the agency dismissed the complaint for failure to state
a claim, in that the appellant was not aggrieved. This appeal followed.
On appeal, appellant argued that rumors allegedly were spread around the
workplace which intimated that he had been responsible for the presence
of the material on the computer. These rumors allegedly made it a "bad
place" for him and his wife (who was also an employee at the facility)
to work, and caused them to request (and receive) a transfer to the
New York facility. Appellant stated that he had a meeting with his
supervisors about the rumors and that no action was taken to quell the
rumors after that, or after his "many complaints that followed."
The agency's statement in response argued that in addition to failing
to state a claim, appellant had also contacted an EEO Counselor in an
untimely manner. The agency's arguments regarding whether appellant
had stated a claim argued the merits of the case rather than whether
procedurally appellant had met the threshold requirement for stating a
claim of discrimination.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency
shall dismiss a complaint which fails to state a claim pursuant to 29
C.F.R. �1614.103. 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,
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). To establish that he is an
"aggrieved employee" and therefore state a claim under the regulations,
a complainant must allege that he was injured in fact.
A term, condition or privilege of employment has been held in Commission
decisions to include, inter alia, promotion, demotion, discipline,
reasonable accommodation, appraisals, awards, training, benefits,
assignments, overtime, leave, tours of duty, etc. Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Appellant
has alleged that management inaction in stopping the rumors about him
affected his working conditions to the point where he felt forced to
transfer to a different facility. This is sufficient to allege that
appellant was aggrieved. Therefore, appellant's complaint was improperly
dismissed for failure to state a claim.
On appeal, the agency raised the additional argument that appellant was
untimely in contacting an EEO Counselor. The agency assumed that the
45 day time limitation began to run as of the date of the discovery
of the pornography on the co-worker's computer, December 8, 1996,
and did not look at the issue of the alleged rumors. The record does
not contain information concerning the dates the alleged rumors about
appellant circulated. Therefore, the Commission cannot say whether or
not appellant was untimely in his EEO contact.
Furthermore, we find that the agency in this case cannot raise the
untimeliness issue to dismiss appellant's complaint. As an explanation
for why he may have been untimely, appellant told the EEO Counselor that
the agency official in charge of the investigation into the presence
of the pornography had instructed him not to discuss the matter with
anyone. Appellant took this to mean that he was under a "gag order."
The agency, on appeal, argued that appellant's explanation was not
sufficient to waive the time limitation. It submitted an affidavit
from the investigator that said he had asked appellant not to discuss
the matter with other employees at the facility, but that he had
not instructed appellant not to file an EEO complaint. Appellant,
however, claims that his understanding was that he had to wait until the
completion of the investigation before he could contact an EEO Counselor.
He contacted an EEO Counselor once he had learned the investigation
had been completed. The Commission has previously held that an agency
may not dismiss a complaint based on an appellant's untimeliness, if
that untimeliness is caused by the agency's action in misleading or
misinforming the appellant. See Wilkinson v. U.S. Postal Service, EEOC
Request No. 05950205 (March 25, 1996). See also Elijah v. Department
of the Army, EEOC Request No. 05950632 (March 28, 1996) (if agency
officials misled appellant into waiting to initiate EEO counseling,
agency must extend time limit for contacting EEO Counselor). Therefore,
the complaint cannot be dismissed for untimeliness.
Accordingly, the decision of the agency is REVERSED and REMANDED for
further processing in accordance with this decision and the proper
regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations 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 (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:
June 9, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations