0120083820-r
02-12-2009
Gene A. Wright,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120083820
Agency Nos. 9Q0R07007,
9Q0R07007L08,
9Q0R07007H08
Hearing No. 480-2008-00125X
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated July 13, 2007, reissued on March 24, 2008, dismissing
his complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq.
BACKGROUND
In his formal complaint dated June 14, 2007, complainant alleged that
he was subjected to discrimination "in a recurrent and continual pattern
since 1993 to [the] present by the [agency] when he has consistently been
denied position upgrades, and when he has been denied compensation for
performing Standby Duties January 1986 to January 2007." At the time
of filing, complainant did not specify any basis of discrimination which
would be covered under the statutes enforced by the EEOC, namely Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. or the Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791 et seq.
In its July 13, 2007 final agency decision (FAD), the agency dismissed
the complaint in its entirety due to complainant's failure to initially
specify any basis of discrimination for the agency's actions. However,
the record is devoid of evidence that complainant received the agency's
July 13, 2007 final decision. On December 21, 2007, complainant sent
an e-mail to the EEO Counselor in which he sought to amend his complaint
and to specify the bases involved (race, color, and national origin).
On December 31, 2007, as 180 days had passed since the filing of his
formal complaint and an investigation had not been conducted or completed,
complainant requested a hearing before an EEOC Administrative Judge (AJ),
pursuant to 29 C.F.R. � 1614.108(g). The agency, presumably deducing
that complainant had not received its July 13, 2007 FAD once it received
the AJ's Order Directing the Agency to Produce the Complaint File, dated
February 1, 2008, and the AJ's Order to Show Cause dated March 13, 2008,
then reissued its FAD on March 24, 2008. It did so despite the provision
at 29 C.F.R. � 1614.109(a), which specifies that once a hearing has been
requested, the AJ assumes sole responsibility for the processing of the
complaint, including the ability to procedurally dismiss it, as per 29
C.F.R. � 1614.109(b).
Complainant, however, upon receipt of the March 24, 2008 reissuance of
the FAD, exercised his appeal rights, and on April 9, 2008, he filed
an appeal of the dismissal with the Commission, docketed as EEOC Appeal
No. 0120082216. In a letter dated April 28, 2008, the agency requested
that the Commission close that appeal as premature, stating that the
matter was pending before an AJ in the Los Angeles District Office.
Concurrently, the agency notified the AJ, by letter dated March 21,
2008, that complainant's complaint had been dismissed. The AJ closed
complainant's request for a hearing on May 16, 2008, finding that she
had no jurisdiction over the complaint since the agency had dismissed
it for failure to state a claim and because an appeal was pending.
However, due to the agency's representation that Appeal No. 0120082216
was premature and pending before an AJ, the Commission also closed the
appeal by letter dated June 3, 2008.
Complainant, understandably confused by the dismissal of his complaint
by both the Commission and the AJ, submitted a letter to the Commission
dated June 20, 2008 in which he requested clarification of which
office had jurisdiction over the complaint. The Commission docketed
the instant appeal in order to clarify the correct procedural posture
of the complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.103(a) provides that individual and
class complaints of employment discrimination and retaliation prohibited
by Title VII (discrimination on the bases of race, color, religion,
sex and national origin), the ADEA (discrimination on the basis of
age when the aggrieved individual is at least forty years of age),
the Rehabilitation Act (discrimination on the basis of disability),
or the Equal Pay Act (sex-based wage discrimination) shall be processed
in accordance with this part. EEOC Regulation 29 C.F.R. � 1614.101(b)
provides that no person shall be subject to retaliation for opposing any
practice made unlawful by Title VII of the Civil Rights Act (Title VII)
(42 U.S.C. � 2000e et seq.), the Equal Pay Act (29 U.S.C. � 206(d)) or the
Rehabilitation Act (29 U.S.C. � 791 et seq.) or for participating in any
stage of administrative or judicial proceedings under these statutes.
The regulation set forth at 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).
We find that although complainant may have initially failed to specify
a basis of discrimination in his formal complaint dated June 14, 2007,
he has since clarified his complaint and has shown that he is intent on
pursuing his claims through the 29 C.F.R. Part 1614 process. The agency
offers no proof that complainant received the July 13, 2007 dismissal
of the complaint for failure to state a claim.
Based on the foregoing, complainant was correct to assume that his
complaint was still pending at the time he amended it on December 21,
2007, clarifying the bases claimed, and at the time he requested a
hearing before an EEOC AJ on December 31, 2007. As complainant has
now specified bases over which the Commission has jurisdiction, we find
that a dismissal for failure to state a claim is no longer appropriate.
In light of the confusion that has clouded the processing of this case,
we find that complainant's complaint should be remanded for processing.
Therefore, we REVERSE the agency's final decision dismissing complainant's
complaint and we REMAND this matter to the agency for further processing
in accordance with the Order below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K1208)
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 77960, Washington,
DC 20013. 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) (1994 & Supp. IV 1999).
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 (M1208)
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 77960,
Washington, DC 20013. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 12, 2009
Date
2
0120083820
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120083820