0120071645
05-24-2007
Rodney Chavez, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Rodney Chavez,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120071645
Agency No. 200P-0648-2007100219
DECISION
On February 10, 2007, complainant filed a timely appeal with this
Commission from the agency's decision dated January 3, 2007, dismissing
his complaint of unlawful employment discrimination 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. Upon review, the Commission finds
that complainant's complaint was improperly dismissed pursuant to 29
C.F.R. � 1614.107(a)(1) for failure to state a claim.
During the relevant period, complainant worked as a Medical Instrument
Technician at an Oregon medical center of the agency. On October 23,
2006, complainant initiated contact with an Equal Employment Opportunity
(EEO) Counselor and, subsequently, filed a formal EEO complaint alleging
that the agency subjected him to hostile work environment harassment
on the bases of national origin (Hispanic), sex (male), age (over 40),
and reprisal for prior protected EEO activity from 2003 to October
23, 2006. To support his claim of harassment, complainant alleged
that, on October 23, 2006, a female coworker (C1) performed exams on
a patient although it was complainant's turn to do so and C1 was aware
that it was complainant's turn. In addition, complainant cited specific
incidents of harassment involving threatening remarks and stares by
coworkers, isolating work-station assignments, a written counseling and
admonishments, management's failure to address unprofessional behavior
and poor performance by coworkers, management requiring complainant to
use leave inappropriately, the proposal of a performance assistance plan,
an unfair allotment of on-call overtime, failure to conduct a mid-term
evaluation for complainant on October 1, 2003, denials of training,
and a reprimand for communicating with his second level supervisor.
In its January 3, 2007 final decision, the agency dismissed complainant's
complaint for failure to state a claim. The agency focused on the
October 23 incident solely and found that complainant was not aggrieved.
The instant appeal from complainant followed. On appeal, complainant
alleged a continuing violation. In opposition to complainant's appeal,
the agency asserted that complainant filed his appeal on February 15,
2007 and, hence, it is untimely and should be dismissed.
The Commission disagrees with the agency regarding dismissal for an
untimely appeal as well as for failure to state a claim. Complainant
filed his appeal on February 10 rather than February 15 as the agency
alleged. Further, complainant alleged hostile work environment harassment
and we find that considering all of the incidents alleged and in a light
most favorable to the complainant, it is sufficient to state a claim.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). Accordingly, the agency's final decision dismissing
complainant's complaint is REVERSED and the matter is REMANDED consistent
with this decision and the order below. We note that complainant has
alleged hostile work environment harassment in the past and that, to the
extent that complainant has alleged the specific incidents he alleges
herein also in the past, they may be used as background evidence for
the current claim.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 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 (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
May 24, 2007
__________________
Date
2
0120071645
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120071645