01A05483
09-26-2002
Terry L. Trapp, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Terry L. Trapp v. Department of Energy
01A05483
September 26, 2002
.
Terry L. Trapp,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A05483
Agency No. 99(038)BPA
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was employed
as a Power Systems Electrician at the agency's Celilo Converter Station in
The Dalles, Oregon. Complainant sought EEO counseling and subsequently
filed a formal complaint on February 4, 1999, alleging that he was
discriminated against on the bases of disability (on-the-job injury to
lower back) and reprisal (for prior EEO complaint alleging a violation of
the ADEA) when: (1) due to an involuntary transfer to a different crew, he
was not given opportunities for "upgrades" beginning September 25, 1998,
by his new crew chief, Foreman 2; (2) he was not provided reasonable
accommodation for the period May 8, 1998 through September 25, 1998,
by Foreman 3; and (3) when on October 12, 1998, after reporting to work,
he was sent home. The agency accepted claim (1) for investigation and
dismissed claims (2) and (3) under the regulations at that time.
At the conclusion of the investigation of claim (1), complainant was
informed of his right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision. In its FAD,
the agency concluded that complainant failed to establish his claim of
discrimination. This appeal followed without comment from either parties.
ANALYSIS AND FINDINGS
Procedural Dismissal of Claims (2) and (3)
The record indicates that the agency dismissed claims (2) and (3) for
failure to state a claim. Complainant appealed this decision to the
Commission which was docketed as EEOC Appeal No. 01994184. During the
pendency of his appeal, new regulations governing the administrative
processing of Federal sector employment discrimination complaints
became effective. EEOC Regulation 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, that determination is not appealable until
final action is taken on the remainder of the complaint. Therefore,
the Commission administratively closed EEOC Appeal No. 01994184 so that
the agency may consolidate its decision not to investigate claims (2) and
(3) with claim (1) which was accepted for investigation. The agency has
now issued its final action, accordingly, we shall address the agency's
decision to dismiss claims (2) and (3).
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. 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,
.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).
In claim (2), the agency dismissed this claim for failure to state a
claim finding that complainant had not been released to work when he
made his request for a reasonable accommodation. In dismissing the claim
in such a manner, the agency has determined that complainant's claim is
not true. This goes to the merits of the complaint and is irrelevant to
the procedural issue of whether complainant has stated a justiciable claim
under the regulations. See Ferrazzoli v. United States Postal Service,
EEOC Request No. 05910642 (August 15, 1991). Therefore, we find that the
agency has acted prematurely in addressing the merits of complainant's
claim (2) without having first conducted a factual investigation.
Accordingly, we reverse the agency's dismissal of this claim.
As to claim (3), the agency found that complainant failed to establish he
was aggrieved. The agency found that complainant was fully compensated
for the holiday rate for October 12, 1998. Therefore, although he
was sent home, the agency found that complainant was not harmed by
the incident. Upon review of the record, the Commission affirms the
agency's dismissal of claim (3).
Merits of Claim (1)
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For purposes of analysis, we will assume complainant is an individual
with a disability. We now turn to the agency to articulate legitimate,
nondiscriminatory reasons for its actions. The record reveals that
complainant was transferred due to the needs of the agency. The crew
complainant was assigned to was full so they reassigned him to Foreman 2
due to workload needs. While he was assigned to Foreman 2, the upgrade
assignments were made in early September, prior to when the agency was
informed that complainant would be returning. Therefore, complainant
had not been put on the upgrade schedule. Foreman 2 averred that he
put complainant on upgrade assignments but complainant was transferred
back to his original assignment because his skills were needed there.
Upon review, we find that the agency has met its burden. Complainant must
now show that the agency's reasons were pretext. The Commission finds
that complainant failed to do so, therefore, we conclude that complainant
did not establish that the agency discriminated against him as alleged
in claim 1.
CONCLUSION
Therefore, after a careful review of the record, we affirm merits
decision of the FAD and the agency's dismissal of claim (3). We also
reverse the agency's dismissal of claim (2) and remand that claim for
further processing in accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim, namely claim (2),
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 (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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
September 26, 2002
__________________
Date