Terry L. Trapp, Complainant,v.Spencer Abraham, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionSep 26, 2002
01A05483 (E.E.O.C. Sep. 26, 2002)

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