01976735
10-29-1998
Dermot O'Sullivan v. Department of the Navy
01976735
October 29, 1998
Dermot O'Sullivan, )
Appellant, )
)
v. ) Appeal No. 01976735
) Agency No. 97-60701-002
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated August 15, 1997, which the agency issued pursuant to
EEOC Regulation 29 C.F.R. �1614.107(a) and (e). The Commission accepts
the appellant's appeal in accordance with EEOC Order No. 960, as amended.
The final agency decision dismissed four allegations raised by the
appellant on various grounds.
After a review of the record, the Commission finds that the agency
properly dismissed allegation 1 (the filling of a vacancy by accretion
of duties in 1995) for untimely EEO counselor contact on April 9, 1997.
The Commission also finds that the agency properly dismissed allegation
2 for failure to state a claim because the appellant's mid-year progress
review did not constitute a final rating of record. If the appellant
believes that the year-end rating is discriminatory, he may initiate a
new EEO complaint which includes the allegedly discriminatory mid-year
assessment of his performance.
The agency dismissed allegations 3 and 4 on the ground that they concerned
a proposed action, a reduction-in-force (RIF) which was scheduled to occur
on September 28, 1997, after the filing of the appellant's July 21, 1997
complaint. In Kilgour v. Department of Veterans Affairs, EEOC Request No.
05900975 (October 4, 1990), the Commission indicated that receipt of a
notice that an employee's position would be abolished pursuant to a RIF
would be sufficient for the employee to be deemed an aggrieved individual.
The record demonstrates that the appellant, a GS-11 Electrical Engineer,
received a May 30, 1997 notice of the agency's decision to change him
to a lower grade GS-6 Management Assistant position pursuant to a RIF.
He next received a June 16, 1997 notice of the agency's decision
to offer him a GS-11 Program Analyst position pursuant to the RIF.
Thus, allegations 3 and 4 state a claim regarding RIF decisions which
had already been made by the agency: the decision to release him from
his GS-11 Electrical Engineer position (allegation 3) and the agency's
decision to offer a GS-12 Electrical Engineer position to another employee
(allegation 4), a position for which the appellant appears to believe
he had repromotion rights. Accordingly, the Commission finds that the
agency improperly dismissed allegations 3 and 4 as prematurely filed.
In so finding, the Commission notes that the agency has not claimed on
appeal that the RIF decisions at issue were never implemented.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of allegations 1 and 2; REVERSES the agency's dismissal of
allegations 3 and 4; and REMANDS allegations 3 and 4 to the agency for
processing as ORDERED 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� (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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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. If you
file a request to reconsider and also file a civil action, 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:
October 29, 1998
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations