01983138
03-01-1999
Eugene Hunter, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Eugene Hunter, )
Appellant, )
)
)
v. ) Appeal No. 01983138
) Agency No. AMRSFO9801I0020
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision ("FAD") concerning his complaint of unlawful employment
discrimination in violation of Title VII, 42 U.S.C. 2000(e) and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. �621 et seq. The final agency decision was dated February 11, 1998.
The appeal was postmarked March 12, 1998, therefore, the appeal is timely
(see, 29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC
Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed allegation
1 of the appellant's complaint.
BACKGROUND
The record indicates that on, September 12, 1997 appellant initiated
contact with an EEO Counselor regarding his complaint. Informal efforts to
resolve concerns were unsuccessful. On November 10, 1997, appellant filed
a formal complaint, alleging among other things, that he was the victim of
unlawful employment discrimination on October 11, 1997 when the agency:
"denied my request for seven MPA consideration announcements that I
applied for will shun me and cause me to be retained and set up for
a possible reduction in force or consideration of being labeled as an
excess employee under the new command concept plan";
"threw me out of the division and the job I sat on was reclassified as
a 4 opt 5;No men hired or promoted at this level";
"promoted and upgraded female employees on a systematic basis";
On February 11, 1998, the agency issued a final decision dismissing
allegation 1 for failure to state a claim because it referred to a
proposed action. Specifically, the agency found that this allegation
concerned personnel actions which have not yet occurred and dismissed
it for failure to state a claim.
In addition, the agency decided allegations 2 and 3 would be subsumed
under an EEO class complaint filed by the same complainant in Eugene
Hunter v. Togo D. West, Jr., Secretary of the Army , Agency No. CATS
AMRS 9710H1050.
The complainant filed this appeal challenging the dismissal of
allegation 1.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint, however, from any
"aggrieved" employee or applicant for employment who believes that he or
she has been discriminated against on the basis of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission 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).
We do not agree with the agency that allegation 1 should be dismissed
for failure to state a claim. Though inartfully worded, it is apparent
from the complaint and accompanying records in the agency's file that the
allegation makes reference to seven applications he made for open vacancy
announcements for which he was not selected. Therefore, the issue concerns
agency actions which resulted in direct personal deprivations... and
present and unresolved harm or losses... to the complainant. See Taylor
v. United States Postal Service, EEOC Request No. 05900367 (June 2, 1990).
We note that allegation 1 of the complaint is essentially an issue of
non-selection and non-promotion which is identical to issues raised in
the class complaint filed by this complainant. Therefore, this issue
should be accepted and subsumed in the class complaint filed by the
complainant in accordance with EEOC Management Directive 110, Chapter 7,
Section III(b) and 29 C.F.R. 1614.204 et seq.
We agree with the agency that allegations 2 and 3 state the same issues
set forth in the class action filed by the same complainant and should be
subsumed in that action. As a procedural clarification, the allegations
are not dismissed but are part of the class action suit.
CONCLUSION
Accordingly, we REVERSE the agency's dismissal of allegation 1 of
the complaint and REMAND it for further processing as described below.
We AFFIRM the Agency's decision to subsume allegations 2 and 3 in the
class complaint.
ORDER
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.204 et seq. 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 forward the complaint, along with a copy of the
Counselor's report and any other information pertaining to timeliness
or other relevant circumstances related to the complaint and the class
complaint, to the Commission for the assignment of an administrative
judge to decide whether to accept or dismiss the class complaint with the
newly subsumed allegations. The administrative judge's recommendation to
accept or dismiss shall become the agency's decision unless the agency
accepts, rejects or modifies the recommended decision within 30 days of
the receipt of the recommended decision and complaint file.
The dismissal of a class complaint shall inform the class agent that
the complaint is being filed on that date as an individual complaint
of discrimination and will be processed under subpart A. In addition,
it shall inform the agent of the right to appeal the dismissal of the
class complaint to the Office of Federal Operations or to file a civil
action and include EEOC Form 573, Notice of Appeal/Petition.
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(c) (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 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. 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:
March 1, 1999 ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations