01a02596
09-26-2000
Domenick Ferrante, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Domenick Ferrante v. Department of the Navy
01A02596
September 26, 2000
.
Domenick Ferrante,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A02596
Agency No. 0000167005
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated February 3, 2000, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405).
On December 7, 1999, complainant filed a formal EEO complaint claiming
that he was the victim of unlawful employment discrimination on the
basis of his age when:
Complainant was denied reassignment to Code 50 as a Journeyman
Electrician Technician; and
Code 50 advertised for a Student Trainee Electrician Technician as
opposed to a Journeyman Electrician Technician, which was filled on
October 27, 1999, by selection of a younger employee under vacancy
announcement No. PAC-98-01 dated August 2, 1999.
On February 3, 2000, the agency issued a final decision dismissing the
complaint on the grounds of untimely EEO Counselor contact and failure
to state a claim. The agency found that complainant's initial contact
with regard to claims one and two on November 16, 1999, was beyond
the forty-five day limitations period. Further, the agency found that
claims one and two did not render complainant an aggrieved employee;
as the result of any action or inaction by the agency, complainant did
not suffer a harm a with respect to a term, condition or privilege of
his employment.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 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). In this
case, the Commission finds that both claims one and two state a claim.
In claim one, complainant alleged that he was discriminatorily denied a
reassignment, clearly a term of his employment. With respect to claim
two, we find that complainant is alleging that code 50 advertised for
a student trainee electrician technician in an effort to exclude older
qualified employees, in particular himself. We find that complainant
has identified an injury and, therefore, is an aggrieved employee.
Accordingly, the agency's decision dismissing claims one and two for
failure to state a claim was improper.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
In this case, the agency dismissed claim one and two for untimely
EEO Counselor contact. With respect to claim one, we find that the
agency failed to supply the date on which complainant was allegedly
denied a reassignment. Without this information, the Commission cannot
determine whether this claim was timely raised with an EEO Counselor.
Therefore, because the agency did not supply a date for claim one,
the Commission vacates the agency's decision dismissing this claim for
untimely EEO Counselor contact and remands claim one back to the agency
for a supplemental investigation. With respect to claim two, we find
that the forty-five (45) day limitation period for initiating timely
EEO contact began to run from October 27, 1999, the date on which code
50 was filled. Therefore, complainant's initial EEO Counselor contact
on November 16, 1999, was timely. Accordingly, the agency improperly
dismissed claim two for untimely EEO Counselor contact.
For the reasons set forth herein, the Commission hereby VACATES the
agency's decision dismissing claim one and REMANDS claim one to the
agency for a supplemental investigation. The agency's decision dismissing
claim two is REVERSED. Claim two is REMANDED to the agency for further
processing in accordance with this decision and applicable regulations.
ORDER
The agency is ORDERED to take the following actions:
Within 15 calendar days from the date this decision becomes final,
the agency must complete a supplemental investigation determining the
date(s) on which complainant was denied reassignment(s), when he became
aware of the denial(s), and when he suspected that the denials were
discriminatory. Thereafter, the agency shall make a new determination
regarding the timeliness of claim one.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall notify complainant whether claim one is accepted for
investigation.
Also within thirty (30) calendar days, the agency shall acknowledge
to complainant that it has received the remanded claim two for further
processing. If claim one is accepted for further processing, it shall
be processed in conjunction with claim two in accordance with 29 C.F.R. �
1614.108.
A copy of the notice regarding the processing of claim one and a copy
of the agency's letter of acknowledgment to complaint regarding claim
two must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0800)
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 (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 26, 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 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.