01974919
11-18-1998
Robert D. Mulkey, Appellant, v. William S. Cohen, Secretary, Defense Logistics Agency Agency.
Robert D. Mulkey v. Defense Logistics Agency
01974919
November 18, 1998
Robert D. Mulkey, )
Appellant, )
)
)
) Appeal No. 01974919
) 01975774
v. ) 01985845
)
) Agency No. HC97005
) HC97007
William S. Cohen, )
Secretary, )
Defense Logistics Agency )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed three appeals with this Commission from three separate
final agency decisions ("FAD") concerning his complaints of unlawful
employment discrimination in violation of the Age Discrimination In
Employment Act (ADEA), Rehabilitation Act, and Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.. All appeals
were timely filed (see, 29 C.F.R. �1614.402(a)), and are accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
Two issues will be decided in this decision. First, whether the
agency properly dismissed allegations 4-7 in appeal number 01974919 and
allegations 3 and 4 in appeal number 01975774. Secondly, whether the
remaining allegations from appellant's two complaints were properly
consolidated by the agency, as raised in appeal number 01985845.
Each appeal will be discussed separately.
BACKGROUND
Appellant timely filed appeal number 01974919 on May 31, 1997. As stated
in the FAD issued by the agency, appellant raised the following
allegations:
1. On August 29, 1996, the Defense Logistics Service (DLS) conducted
an investigation into allegations of living beyond your means, being
intoxicated on July 15, 1996, and sexually harassing a co-worker, and
misuse of a government American Express card.
2. On October 7, 1996, you were suspended for 40 hours for allegedly
sexually harassing a co-worker and being under the influence of alcohol.
3. Between September 20, 1996, and January 16, 1995, you were assigned
excessive amounts of temporary duty (TDY) and directed by your first
level supervisor to travel on Saturdays, Sundays, and holidays outside
the basic work week.
4. On September 26, 1996, an attempt was made by your second level
supervisor to force you to retract your response and rebuttal to your
proposed suspension notice, dated August 19, 1996.
5. On September 4, 1996, your Privacy Act Rights were violated when
your second level supervisor transmitted, via facsimile, correspondence
pertaining to suspension information to a contractor's location when
you were TDY and a contractor brought the correspondence to you.
6. On October 18, 1996, your second level supervisor spoke to your wife
in a very sarcastic tone when informed you were still in the hospital.
7. On October 18, 1996, your wife received a telephone call from the
security specialist who spoke to her in a rude, sarcastic, and harassing
manner when he threatened her that you would lose your job and security
clearance if he didn't find out where you were.
Allegations 4 and 5 were dismissed for failure to state a claim as the
agency found that appellant failed to indicate that he suffered a direct
and personal deprivation sufficient to render him aggrieved. Allegation 6
and 7 were dismissed for failure to state a claim as appellant was not
the person aggrieved, but his wife.
Appellant appeals the dismissal of these allegations to this Commission.
Appeal number 01975774 was timely filed on July 17, 1997, whereby
appellant appeals the dismissal on allegations 3 and 4 from his complaint.
The allegations as stated in the FAD as follows:
1. You were denied compensation for 266.5 hours for traveling to and
from assigned duty stations.
2. A Col. discussed your medical conditions and stated to a manager and
co-worker that you had threatened violence against yourself, a supervisor,
and a co-worker.
3. A Col. threatened he would charge you with AWOL if you didn't report
to work on November 11, 1996.
4. A Col. suggested, in a letter dated February 3, 1997, that you resign
from the job.
The agency dismissed allegation 3 and 4 for failure to state claim.
The agency issued a third FAD on October 2, 1997, consolidating
the allegations accepted for investigation in complaints HC-97005
and HC-97007. Appellant appeals this consolidation in appeal number
01985845.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex, and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age), the Rehabilitation Act (discrimination
on the basis of disability), and the Equal Pay Act (sex-based wage
discrimination) shall be processed in accordance with part 1614 of
the EEOC regulations. In addition, the U.S. Supreme Court has stated
that an employee is aggrieved when some personal loss or harm has been
suffered with respect to a term, condition, or privilege of employment.
Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205 (1972)
In appeal number 01974919, the Commission agrees with the agency that
appellant has failed to state a claim in allegations 4 and 5. In regards
to allegation 4, the Commission has repeatedly found that remarks or
comments unaccompanied by a concrete agency action are not a direct
and personal deprivation sufficient to render an individual aggrieved
for the purposes of Title VII. See Backo v. U.S. Postal Service, EEOC
Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Service,
EEOC Request No. 05940695 (February 9, 1995). Furthermore, appellant
has failed to allege a harm resulting from the alleged dispersion of
his suspension information on September 26, 1996. Accordingly, the
Commission AFFIRMS the dismissal of allegation 4 and 5.
Allegations 6 and 7 were properly dismissed as appellant fails to
demonstrate how he has been aggrieved by various management personnel
speaking to his wife in an allegedly rude and sarcastic manner. There is
no statement by appellant that demonstrated how these events affected
a term, condition, or privilege of his employment. Accordingly the
commission AFFIRMS the dismissal of allegations 6 and 7 of appeal number
01974919.
In appeal number 01975774, appellant alleges that the agency
improperly dismissed allegation 3 and 4 for failure to state a claim
as it demonstrates a pattern of ongoing harassment perpetrated by his
supervisor. The Commission finds that allegation 3 and 4 fails to state
a claim as pursuant to EEOC Regulation 29 C.F.R. �1614.107(e) providing,
in part, that the agency shall dismiss a complaint or a portion of a
complaint that alleges that a proposal to take a personnel action, or
other preliminary step to taking a personnel action, is discriminatory.
Here, the supervisor allegedly subjected appellant to threats of
personnel action which were never acted on. Accordingly the dismissal
of allegations 3 and 4 is AFFIRMED as a proposed action.<1>
The final issue before the Commission in appeal number 01985854 is whether
the agency erred in consolidating the remaining allegations of complaints
HC-97005 and HC-97007. The Commission finds that as the allegations
from the individual complaints span over a number of different events,
the complaints are not so inextricably connected to warrant consolidation.
See Martin v. Department of Defense, EEOC Request No. 05940745 (August
24, 1995). In short the Commission fails to see how the events when
viewed as a whole are sufficiently related, requiring that the agency
consolidate the two complaints. Accordingly, the Commission REVERSES
the agency's FAD consolidating the complaints, and orders the agency to
process case files HC-97005 and HC-97007 separately.
CONCLUSION
Accordingly, the agency's dismissal of allegations 4-7 of appellant's
complaint (HC-97005) is AFFIRMED. The agency's dismissal of allegation
3 and 4 in appellant's complaint (HC-97007) is AFFIRMED. The agency's
FAD consolidating appellant's two complaints is REVERSED.
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
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:
Nov 18, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1These allegations, while failing to state a claim on their own, may serve
as evidence to bolster appellant's allegation of ongoing harassment by
his supervisor in allegations 1 and 2 which have been accepted by the
agency for investigation.