Domenick Ferrante, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 26, 2000
01a02596 (E.E.O.C. Sep. 26, 2000)

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.