01A21248_r
08-22-2002
Forrest C. Meeks, Jr., Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Forrest C. Meeks, Jr. v. Department of Energy
01A21248
August 22, 2002
.
Forrest C. Meeks, Jr.,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A21248
Agency No. 00 (20) BPA
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision (FAD) dated May 11, 2000, dismissing 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.<1>
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of disability and in reprisal for prior
protected activity when:
1. on October 12, 1999, he was denied attendance at a class for Microsoft
Project Maintenance; and
2. he was denied the use of a tape recorder during his performance
evaluation with an agency Manager.
The agency dismissed the complaint for failure to state a claim.
Regarding claim (1), the agency found that complainant's next line
Supervisor denied complainant's request to attend the local Microsoft
class on Project Management because he viewed the class to be of
limited value because it involved software that was not commonly used
in the workplace. Instead, the Supervisor recommended that complainant
watch for relevant training related to the agency's Business Solutions
Project. Further, the agency found that complainant did not receive
adverse treatment in the denial of training because it was determined the
training was not suitable for the Internal Audit organization as a whole.
Regarding claim (2), the agency concluded that complainant failed to
state how he was aggrieved because he never requested to tape record
the evaluation meeting due to some memory problems. Further, the agency
concluded that the Manager was told later that complainant had in fact
tape-recorded their conversation without his knowledge or consent.
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).
A review of the record persuades the Commission that claim (1) was
improperly dismissed. Complainant has alleged a loss or harm to a
term, condition, or privilege of his employment regarding the denial of
attending a class for Microsoft Project Maintenance. Because complainant
alleged that he was discriminated against on the bases of disability and
in reprisal for prior protected activity, he has raised claims within the
purview of the EEOC regulations. See Hobson v. Department of the Navy,
EEOC Request No. 05891133 (March 2, 1990).
With respect to claim (2), a fair reading of the record indicates that
complainant has alleged that by denying him the use of a tape recorder
during his performance evaluation with an agency Manger, he was in
essence denied a reasonable accommodation for memory problems that he
was experiencing. We find that complainant has raised a claim within
the purview of the regulations and determine that the agency improperly
dismissed claim (2) for failure to state a claim.
Accordingly, the agency's decision to dismiss the complaint is REVERSED.
The complaint is REMANDED to the agency for further processing in
accordance with 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 claim 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 (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
August 22, 2002
__________________
Date
1In a letter dated January 8, 2001, the agency
informed an Administrative Judge of the Commission that complainant had no
standing to request a hearing on the instant complaint. The agency noted
that the instant FAD was issued on May 11, 2000, and that a certified
return receipt reflected that complainant had received the FAD on May
13, 2000. The agency concluded that as of January 8, 2001, complainant
had not yet filed an appeal from the agency FAD. The record in this
case, however, does not contain any evidence reflecting that complainant
received the FAD on May 13, 2000. The Commission presumes that the appeal
was filed within thirty (30) calendar days of the date of complainant's
receipt of the final decision.