01A21596_r
03-05-2003
Mitchell G. Brodsky, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Mitchell G. Brodsky v. Department of Energy
01A21596
March 5, 2003
.
Mitchell G. Brodsky,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A21596
Agency Nos. 01(48)NV
01(82)NV
01(92)NV
01(93)NV
DECISION
Complainant filed a timely appeal with this Commission from the agency's
Notice of Acceptance and Dismissal of Complaint(s) of Discrimination
dated December 26, 2001, dismissing one of two claims in one complaint of
unlawful employment discrimination, and another complaint in its entirety,
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
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.
As a preliminary matter, the Commission notes that the matters at issue in
the instant appeal relate to the four captioned complaints. In a document
dated December 26, 2001, and identified as a Notice of Acceptance and
Dismissal of Complaint(s) of Discrimination, the agency addressed the
following four complaints:
On March 14, 2001, complainant filed a complaint 01(48)NV, claiming
discrimination on the bases of race, color, religion, sex, age, and
in reprisal for prior EEO activity when his requests for training were
denied, while training was approved for women and minorities.
On July 12, 2001, complainant filed a complaint 01(82)NV, alleging that
he was discriminated against on the same bases identified above, when
a security investigation was conducted that significantly impinged upon
and jeopardized his ability to pursue his chosen career.
On March 8, 2001, complainant filed a complaint 01(92)NV, alleging that
he was discriminated against on the same bases of discrimination when<1>:
(1) he was denied a desk audit; and
(2) the agency refused to update his position description.
On March 8, 2001, complainant filed a complaint 01(93)NV, alleging that
he was discriminated against on the same bases of discrimination when
he received low ratings on his performance evaluation.
The agency consolidated Complaint Nos. 01(48)NV; 01(82)NV; and 01(92)NV.
The agency then accepted for investigation Complaint Nos. 01(48)NV;
01(82)NV and claim (1) in Complaint No. 01(92)NV. However, the agency
dismissed claim (2) in Complaint No. 01(92)NV on the grounds of mootness,
pursuant to 29 C.F.R. � 1614.107(a)(5). The agency stated that claim (2)
had been resolved previously through the mediation process on February
23, 2001, and that complainant's position description was reviewed and
reclassified as of June 3, 2001.
Regarding Complaint No. 01(93)NV, the agency did not consolidate this
complaint with the above referenced three complaints. However, the agency
dismissed this complaint on the grounds that it was not an actionable
claim, under 29 C.F.R. � 1614.107(a)(5). The agency stated in its final
decision it was a mid-year review, not an official performance appraisal
of record.
The agency provided complainant appeal rights to the Commission.
On appeal, complainant states that five pending complaints and two
complaints on appeal �depict a serious pattern of discriminatory practices
benchmarked in prohibited personnel practices and abuses of power which
have been leveraged upon the Complainant.�
Claim (2) in Complaint No. 01(92)NV
With respect to No. 01(92)NV, the Commission notes that this complaint
was consolidated with Complaint Nos. 01(48)NV and 01 (82)NV; and that
those two complaints, as well as claim (1) of Complaint No. 01(92)NV
were accepted for investigation. The regulation set forth at 29 �
C.F.R. 1614.107(b) provides that where an agency decides that some but
not all of the claims in a complaint should be dismissed, the agency shall
notify the complainant of its determination; however, this determination
is not appealable until final action is taken on the remainder of the
complaint. For this reason, the Commission determines that the appeal
from the dismissal of claim (2) is premature, despite the agency having
provided complainant appeal rights regarding the dismissal of claim (2).
Claim (2) is therefore REMANDED to the agency for further processing
with Complaint Nos. 01(48)NV, 01(82)NV, and claim (1) of Complaint
No. 01(93)NV, which have been accepted for investigation.
Complaint No. 01(93)NV
EEOC Regulation 29 C.F.R. � 1614.107 (a)(5) provides that an agency shall
dismiss a complaint that alleges that a proposal to take a personnel
action, or other preliminary step to taking a personnel action,
is discriminatory. The Commission has held that a periodic progress
review with no permanent effect, such as that in the present complaint,
does not create a personal harm. See Jackson v. Central Intelligence
Agency, EEOC Request No. 05931177 (June 23, 1994).
We note that while the agency frames Complaint No. 01(93)NV as being
comprised of a single incident of discrimination, a review of the record
reveals that the instant complaint is part of a broader claim of ongoing
retaliatory harassment. A complaint should not be dismissed for failure
to state a claim unless it appears beyond doubt that the complainant
cannot prove a set of facts in support of the claim which would entitle
the complainant to relief. The trier of fact must consider all of the
alleged harassing incidents and remarks, and considering them together
in the light most favorable to the complainant, determine whether they
are sufficient to state a claim. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
The Commission finds that the agency improperly viewed complainant's claim
individually, rather than as part of an overall claim of harassment.
Thus, in order to avoid fragmentation of complainant's harassment
claim, we find that Complaint No. 01(93)NV should be consolidated with
complainant's other pending complaints for processing.
Accordingly, claim (2) of Complaint No. 01(92)NV) is REMANDED to
the agency for further processing in accordance with the order below.
The dismissal of Complaint No. 01(93)NV is REVERSED. Complaint 01(93)NV
is also REMANDED to the agency for further processing in accordance with
the Order below.
ORDER
The agency is ORDERED to consolidate claim (2) in Complaint No. 01(92)NV
with Complaint Nos. 01(48)NV, 01(82)NV, and claim (1) in Complaint
No. 01(92)NV, in accordance with 29 C.F.R. � 1614.108. The agency is
further ORDERED to consolidate Complaint No. 01(93)NV with the other
three captioned complaints. The agency shall acknowledge to complainant
that it has received the remanded claims with thirty (30) calendar days
of the date that this decision becomes final. The agency shall issue to
complainant a copy of the investigative file and shall notify complainant
of the appropriate rights within one hundred-fifty (150) calendar days of
the date that this decision becomes final, unless the matter is otherwise
resolve prior to that time. If complainant requests a final decision
without a hearing, the agency shall issue a final decision with sixty
(60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant,
including the notice of consolidation, 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
March 5, 2003
__________________
Date
1For purposes of clarity, the Commission has
numbered the agency's framing of complainant's claims as 1-2.