01981591_r
01-07-1999
Thomas A. Bevan, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Thomas A. Bevan, )
Appellant, )
)
v. ) Appeal No. 01981591
) Agency No. 97-1392M
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
______________________________)
DECISION
On December 12, 1997, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on November 19, 1997,
pertaining to his complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. �621 et seq., and Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. �791 et seq. In his complaint,
appellant alleged that he was subjected to discrimination on the bases
of age (DOB 9/22/48), mental disability (Attention Deficit Disorder),
and in reprisal for prior EEO activity when on August 18, 1997, he was
constructively discharged from his employment when forced to submit his
application for retirement from his position as Accountant, GS-510-13,
which was effective December 30, 1997.
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.107(a), for failure to state a claim. However,
the agency analyzed its dismissal as though it were pursuant to 29
C.F.R. �1614.107(e), for alleging that a proposal to take a personnel
action, or other preliminary step to taking a personnel action,
was discriminatory. Specifically, the agency determined that because
appellant's retirement was not effective until December 30, 1997, it
did not represent a present harm which would render him aggrieved.
In its response to appellant's appeal, the agency maintains that
appellant's complaint was premature. In the alternative, the agency
argues that the incidents appellant identified as forcing his constructive
discharge are insufficient to establish a hostile work environment.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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 the instant case, appellant alleged that due to a hostile work
environment to which he was subjected, appellant was forced to accept
early retirement. As appellant clearly alleged harm to the terms,
conditions or privileges of his employment, we find that he stated a
claim upon which relief can be granted.
EEOC Regulation 29 C.F.R. �1614.107(e) provides, 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. The agency determined that
appellant's complaint represented a proposed personnel action because his
retirement was not effective until December 30, 1997. We note, however,
that there were no conditions placed on appellant's retirement or other
reasons to believe that it would not take place as scheduled on December
30, 1997. Consequently, we find that appellant's retirement was not a
proposed action, but rather a personnel action scheduled to take place
on a date certain. Furthermore, even if it were considered a proposed
action, when a complaint is filed on a proposed action and the agency
subsequently proceeds with the action, the action is considered to have
merged with the proposal. Charles v. department of the Treasury, EEOC
Request No. 05910190 (February 25, 1991). As the record in this case
discloses that appellant's retirement became effective December 30, 1997,
we consider this action to have merged with the proposal. Consequently,
we find that appellant's complaint is not premature.
With regard to the agency's contention that appellant's allegations
are facially insufficient to state a claim for constructive discharge,
we find that the agency's contention goes to the merits of appellant's
complaint, and is irrelevant to the procedural issue of whether he has
stated a justiciable claim under Title VII. See Osborne v. Department
of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. USPS,
EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. USPS, EEOC
Request No. 05910642 (August 15, 1991).
Accordingly, the agency's decision to dismiss appellant's complaint
was improper, and is hereby REVERSED. The complaint is REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
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 (R0993)
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. 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.
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:
Jan. 7, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations