01A05252
11-22-2000
William D. Brendle, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
William D. Brendle v. Department of Veterans Affairs
01A05252
November 22, 2000
.
William D. Brendle,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05252
Agency No. 2004-2005
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to 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.<1>
The Commission accepts the appeal in accordance with 29 C.F.R � 1614.405.
On May 25, 2000, complainant contacted the EEO office with claims of
discrimination regarding assignment of duties, failure to promote,
and harassment. Specifically, complainant referred to a Settlement
Agreement, entered on April 16, 2000. According to complainant the
agreement included a last chance stipulation, wherein, until April 20,
2000, he could not have contact with patients. The laundry service where
complainant currently worked was closing, and the Human Resources office
had been posting other positions to help the displaced laundry workers.
Complainant contends that he signed up for several positions but had
been told that he cannot perform the required duties because of the
last chance agreement. On May 23, 2000, he learned that his seniority,
skills, and background are not being considered because of the agreement.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, on June 29, 2000, complainant filed a formal complaint on
the bases of reprisal and age.
On July 26, 2000, the agency issued a decision dismissing the complaint on
the grounds that it involves matters previously resolved, pursuant to 29
C.F.R. � 1614. 107(a)(9)(ii). The agency determined that complainant's
assignment of duties and promotion claims are directly related to the
settlement agreement entered by complainant and the agency on April 16,
1998. Similarly, the harassment claim discussed with the counselor was in
connection with complainant's prior complaints, which were resolved by the
settlement agreement. The agency noted that if complainant believed that
the agency failed to comply with the terms of the settlement agreement
he should notify the EEO Director in writing.
EEOC Regulations provide that a complaint be dismissed where the agency
finds that the complaint is part of a clear pattern of misuse of the
EEO process for a purpose other than the prevention and elimination
of employment discrimination. See 29 C.F.R. � 1614.107(a)(9). The
regulations allow for a finding of abuse of process is there is:
(1) evidence of multiple complaint filings; and (2) allegations that
are similar or identical, lack specificity of involve maters previously
resolved; or (3) evidence of circumventing other administrative processes,
retaliating against the agency's in-house administrative processes or
overburdening the EEO complaint system. Id. However, the circumstances
where such standards are applicable must be rare, due to the strong policy
in favor of preserving a complainant's EEO rights whenever possible. EEO
Management Directive 110 (MD-110), 5-17 (November 9, 1999) (citing Love
v. Pullman, 404 U.S. 522 (1972); Wrenn v. Equal Employment Opportunity
Commission, EEOC Appeal No 01932105 (1993)).
Here, the agency contends that complainant is misusing the EEO process
by raising matters that are related to a settlement agreement entered on
April 16, 1998. According to the agency, complainant's claims regarding
assignment of duties, failure to promote and harassment were previously
resolved. The Commission finds, however, that the agency's dismissal
of the complaint for abuse of process was improper. As noted above,
abuse of process is only found in exceptional circumstances where there
is a clear misuse or abuse of the administrative process. Such misuse
is not evident here.
Complainant contends that on May 18, 2000, he was discriminated
against regarding his assignment of duties and on May 23, 2000, the
agency failed to promote him. While the agency attempts to explain
its actions by reliance on the agreement, it seems that the agency
has addressed the merits of complainant's complaint without a proper
investigation as required by the regulations. We find that the agency's
articulated reason for the actions in dispute, i.e., that the actions
were dictated by the prior settlement agreement, goes to the merits of
the complaint, and is irrelevant to the procedural issue of whether he
has stated a justiciable claim under Title VII. See Ferrazzoli v. USPS,
EEOC Request No. 05910642 (August 15, 1991). Accordingly, the agency's
decision to dismiss the complaint for abuse of process 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 (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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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
November 22, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.