01a05466
09-14-2000
David Schachtman, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
David Schachtman v. Department of Commerce
01A05466
September 14, 2000
.
David Schachtman,
Complainant,
v.
William M. Daley,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A05466
Agency No. 00-63-00940D
DECISION
The instant matter is being processed pursuant to a Memorandum of
Understanding (MOU) entered into by the agency, the Bureau of the Census,
and the United States Equal Employment Opportunity Commission.<1> The
MOU was entered into in order to process complaints arising from the
2000 Decennial Census more effectively and efficiently.
Pursuant to the MOU, individuals file their complaints directly with
the Commission. The Commission, through its Washington, D.C. Field
Office, then conducts an early assessment of complaints and neutral
evaluation of cases. The Washington, D.C. Field Office of the Commission
establishes a record of the complaint by obtaining an affidavit from the
complainant and by contacting an agency official to obtain the necessary
information on the complaint. Based on the record established by the
Washington, D.C. Field Office, the Washington, D.C. Field Office will:
(1) notify the agency that the individual has elected not to file a
formal complaint; (2) issue a decision dismissing the complaint and
notify the complainant of his or her right to appeal the decision to
the Office of Federal Operations; (3) conduct settlement negotiations;
or (4) notify the complainant that the complaint has been accepted and
forward the complaint to the agency for further investigation.
The Commission's Washington, D.C. Field Office dismissed the instant
complaint �based on 29 C.F.R. � 1614.107.� In its dismissal, the Field
Office found that complainant failed to establish a prima facie case of
religious, age, or disability discrimination for his claim of unjust
termination. Specifically, the Field Office found that the agency was
preparing to offer complainant a different schedule working weekends,
but terminated him instead because of his aggressive conduct.
On appeal, complainant disputes the Field Office's findings. He argues
that the agency was not preparing to offer him weekend hours, because he
already worked weekend hours. Complainant admits becoming �distressed�
and �quite upset,� but contends that his termination was unjustified and
discriminatory based on his age (66), religion (Judaism), and disability
(end stage renal failure).
Although the Field Office failed to articulate a specific basis for
its dismissal, the Commission presumes that it dismissed the complaint
for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
To state a claim, complainant must allege harm to a term, condition,
or privilege of her employment on the basis of race, color, religion,
sex, national origin, age, disabling condition, or reprisal for prior
protected activity. See Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994).
In the present complaint, the Field Office improperly addressed the merits
of the complaint without the benefit of an investigation. The Field
Office's attempt to find the true reason for complainant's termination is
irrelevant to the procedural issue of whether he has stated a cognizable
claim of discrimination. Complainant alleged harm to his employment
(termination), and claimed the harm was based on improper bases. This
information is adequate to require an investigation of the complaint.
CONCLUSION
Accordingly, the Field Office's dismissal is REVERSED, and the claim is
REMANDED for further processing.
ORDER
The Washington, D.C. Field Office shall, pursuant to the Memorandum
of Understanding referenced in this decision, conduct settlement
negotiations on the instant complaint or notify complainant that the
complaint has been accepted and forward the complaint to the agency for
further investigation.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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
September 14, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
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 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.