05A00578
11-09-2000
William D. Snapp, Complainant, v. Ida L. Castro, Chairwoman, Equal Employment Opportunity Commission, Agency.
William D. Snapp v. Equal Employment Opportunity Commission
05A00578
November 9, 2000
.
William D. Snapp,
Complainant,
v.
Ida L. Castro,
Chairwoman,
Equal Employment Opportunity Commission,
Agency.
Request No. 05A00578
Appeal No. 01997254
Agency No. 0-9900045-HQ
DECISION ON REQUEST FOR RECONSIDERATION
On March 16, 2000, William D. Snapp (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)<1>
to reconsider the decision in William D. Snapp v. Equal Employment
Opportunity Commission, EEOC Appeal No. 01997254 (February 10, 2000).<2>
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision. 29 C.F.R. � 1614.405(b).
The party requesting reconsideration must submit written argument
or evidence which tends to establish one or more of the following
two criteria: the appellate decision involved a clearly erroneous
interpretation of material fact or law; or the decision will have a
substantial impact on the policies, practices or operations of the agency.
Id. For the reasons set forth herein, complainant's request is granted.
BACKGROUND
The record indicates that complainant filed a complaint alleging that
he was subjected to discrimination when he was informed by the General
Counsel that he would be demoted and removed from his position as the
Regional Attorney of the Atlanta District Office. Complainant alleged
further that the agency's actions amounted to a constructive demotion,
forcing him to accept a position as an Alternative Dispute Resolution
Coordinator. In the previous decision, the Commission affirmed the
agency's August 24, 1999 decision dismissing his claim, finding that
the agency's actions at best constituted a preliminary step to taking a
personnel action. The previous decision concluded that no action was
taken by the agency based on the alleged statements of the General Counsel
that complainant was to be removed as Regional Attorney. As such, the
Commission found that complainant failed to state a claim of employment
discrimination.
On request for reconsideration, complainant claims that the Commission's
previous decision involves an erroneous interpretation of fact or law.
In support of his claim of constructive demotion, complainant describes
the work environment at the time of the statements of the General Counsel.
Specifically, complainant contends that the Office of General Counsel
has repeatedly used the �transfer ploy� to remove Regional Attorneys from
their positions. According to complainant the Office of General Counsel
would involuntarily transfer Regional Attorneys, creating a hardship for
them, and resulting in their resignations. In view of this environment,
complainant states that he regarded the General Counsel's statements to
him regarding his impending demotion and removal, as a sign that he was
to be removed from employment.
The Commission finds that complainant's request to reconsider meets the
criterion of 29 C.F.R. � 1614.405(b)(1). It is therefore the decision
of the Commission to grant the request. The previous decision found that
the agency actions and alleged statements by the General Counsel did not
render complainant aggrieved. Upon review of complainant's submissions
and the entire record, it is clear that complainant is raising a claim
of constructive demotion. Generally a forced resignation (whether it
results in a discharge or demotion) occurs when an employer knowingly
allows conditions of discrimination so intolerable that a reasonable
person would have felt compelled to resign. The Commission has held
that, in order to prove a claim of constructive demotion, complainant
must show that: (1) a reasonable person in his position would have found
the working conditions intolerable; (2) conduct which constituted a
violation of anti- discrimination laws created the intolerable working
conditions; and (3) complainant's involuntary resignation resulted from
those intolerable working conditions. Nolen-Frisby v. Department of
Transportation, EEOC Appeal No. 01950312 (May 1, 1997); Moore v. USPS,
EEOC Request No. 05910565 (October 4, 1991); Sprangle v. Valley Forge
Sewer Authority, 839 F.2d 171, 173 (3rd. Cir. 1988). Since complainant
accepted another position allegedly as a result of the environment and
the General Counsel's statements, clearly the action is not a proposal or
preliminary step. Consequently, we find that when his claim is properly
defined, complainant has stated a claim of constructive demotion which
is appropriate for processing.
Finally, we note that the claim of constructive demotion is an action
that can be appealed to the Merit Systems Protection Board (MSPB).
Consequently, on remand, the agency shall resume processing of the present
case as a mixed case complaint pursuant to the appropriate regulations
and the Order below.
CONCLUSION
After a review of complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
complainant's request meets the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to GRANT the complainant's request.
The decision of the Commission in Appeal No. 01997254 and the final agency
decision is REVERSED. There is no further right of administrative appeal
on the decision of the Commission on a Request to Reconsider.
ORDER
The agency is ORDERED to process the remanded claims in accordance with
29 C.F.R. � 1614.302. 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. 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:
Frances M. Hart
Executive Officer
Executive Secretariat
November 9, 2000
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
1In the instant matter, the EEOC is both the respondent and the
adjudicatory authority. The Commission's adjudicatory function is
separate and independent from those offices charged with in-house
processing and resolution of discrimination complaints. For purposes of
this decision, the term �Commission� or �EEOC� will be used when referring
to the adjudicatory authority and the term �agency� will be used when
referring to the respondent part in this action. The Chairwoman has
recused herself from participation in this decision.
2On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.