George Dale, Complainant,v.Aida Alvarez, Administrator, Small Business Administration,) Agency.

Equal Employment Opportunity CommissionJul 10, 2000
05980124 (E.E.O.C. Jul. 10, 2000)

05980124

07-10-2000

George Dale, Complainant, v. Aida Alvarez, Administrator, Small Business Administration,) Agency.


George Dale v. Small Business Administration

05980124

July 10, 2000

George Dale, )

Complainant, )

) Request No. 05980124

v. ) Appeal No. 01973455

) Agency No. 09-96-565

Aida Alvarez, )

Administrator, )

Small Business Administration,)

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

On November 14, 1997, George Dale (hereinafter referred to as appellant)

timely initiated a request to the Equal Employment Opportunity Commission

(the Commission) to reconsider the decision in George Dale v. Aida

Alvarez, Administrator, Small Business Administration, EEOC Appeal

No. 01973455 (October 22, 1997).<1> EEOC Regulations provide that the

Commission may, in its discretion, reconsider any previous Commission

decision where the requesting party demonstrates 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. See 64 Fed.

Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.405(b)). For the reasons set forth herein, it

is the decision of the Commission to deny the complainant's request but

to reconsider the prior decision on its own motion.

ISSUES PRESENTED

The issues presented herein are whether the previous decision properly

dismissed the complainant's appeal for untimeliness; and whether the

agency properly dismissed the complainant's complaint.

BACKGROUND

The complainant initiated EEO counseling on July 11, 1996, and thereafter

filed a formal complaint alleging discrimination based on race (White),

sex (male), age (53), and reprisal (prior EEO activity) when:

1. he was not paid at the GS-14 level after serving in the position of

Acting Chief, Licensing Unit for more than 90 days;

2. management refused to allow him to rescind his letter of resignation

from the position of Acting Chief, Licensing Unit and replaced him with

a 33-year-old male;

3. he was not given the opportunity to compete for the position of Chief,

Licensing Unit; and,

4. he was retaliated against when the staff and resources under his

supervision were reduced.

In a final decision (FAD) dated January 22, 1997, the agency dismissed

Issue 1 as untimely and Issues 2 through 4 for failure to state a claim.

The FAD also dismissed the basis of reprisal on the ground that the

complainant had not engaged in prior EEO activity. The complainant

appealed the FAD and the prior decision dismissed it as untimely.

Specifically, the decision found that, although the complainant had

received the FAD on January 24, 1997, his appeal was not filed until

March 26, 1997.<2> The decision noted that this was well-beyond the

30-day period set forth at 29 C.F.R. � 1614.402(a).

In support of his request for reconsideration, the complainant submitted

an affidavit from his attorney, who states that the notice of appeal was

mailed on either February 21 or 24, 1997. The attorney notes that both

of these dates fell within the 30-day period. The complainant has also

submitted a copy of the appeal form (Form 573) he mailed to the agency,

which was date-stamped as having been received on February 21, 1997.

ANALYSIS AND FINDINGS

As discussed above, the Commission may, in its discretion, reconsider

any previous decision when the party requesting reconsideration submits

written argument or evidence which tends to establish that any of the

criteria of 29 C.F.R. � 1614.405(b) is met. In order for a case to

be reconsidered, the request must contain specific information which

meets the requirements of this regulation. It should be noted that

the Commission's scope of review on a request for reconsideration is

limited. Lopez v. Department of the Air Force, EEOC Request No. 05890749

(September 28, 1989). Furthermore, a request to reconsider is not "a

form of second appeal." Regensberg v. United States Postal Service,

EEOC Request No. 05900850 (September 7, 1990); Spence v. Department of

the Army, EEOC Request No. 05880475 (May 31, 1988).

In this case, the complainant has not demonstrated that, based on

the evidence that was in the record at the time of his appeal, it

was erroneous for the prior to decision to find the appeal untimely.

However, based on the complainant's submissions in support of his

request for reconsideration, it is the decision of the Commission to

reconsider the prior decision on its own motion. 29 C.F.R. � 1614.405(b).

Although the Commission has no record of having received a Form 573 from

the complainant, his attorney testified that a copy of this form was

mailed to the Commission within the 30-day filing period. We also note

that the agency received its copy of the Form 573 on February 21, 1997.

In this regard, we find it reasonable to conclude that the agency's

copy was mailed at the same time the complainant mailed a copy to the

Commission. Accordingly, we find that this evidence is sufficient to

conclude that the complainant timely filed his appeal.

Issue 1

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides that an aggrieved

person must initiate contact with an EEO Counselor within 45 days of

the date of the matter alleged to be discriminatory or within 45 days of

the effective date of a personnel action. This period may be extended

when the complainant shows that he was not notified of the time limits

and was not otherwise aware of them; that he did not know and reasonably

should not have known that the discriminatory matter or personnel action

occurred; that despite due diligence he was prevented by circumstances

beyond his control from contacting an EEO Counselor within the time

limits; or for other reasons considered sufficient by the agency

or the Commission. 29 C.F.R. � 1614.105(a)(2).

Although the complainant's detail into the Acting Chief position was

between June 1995 and June 1996, he did not initiate EEO counseling

until July 11, 1996. As such, most of the period the complainant was in

the position was outside the 45-day period for initiating counseling.

Notwithstanding that fact, we note that what the complainant is

challenging, i.e., not being compensated at the GS-14 level, is not simply

one act but a series of continuing acts. In this regard, we find that

each pay check the complainant received at the GS-13 level constitutes a

separate, actionable claim. See Bazemore v. Friday, 478 U.S. 385, 396,

106 S.Ct. 3000, 3006 (1986). To the extent some of these actions fell

within the 45-day period, we find that the agency improperly dismissed

this allegation. Accordingly, we find that this allegation should be

remanded to the agency for processing.

Issue 2

Due to dissatisfaction with his detail, the complainant submitted a letter

dated May 3, 1996, resigning from the Position and asking to return to his

regular position. According to the complainant, the agency then proceeded

to make changes to the Position that addressed some of his concerns.

For that reason, the complainant submitted a letter dated May 28, 1996,

seeking to withdraw his resignation. The agency refused to accept the

withdrawal and the complainant returned to his position in June 1996.

In finding that this refusal failed to state a claim, the FAD states

that the agency was not required to accept the withdrawal and that its

decision not to accept it did not harm a term, condition, or privilege of

the complainant's employment. The Commission finds that this issue was

improperly dismissed. First, because the agency's refusal to accept the

withdrawal of the complainant's resignation meant that he had to return

to his regular position, the action clearly affected the conditions of his

employment. Second, merely because the agency was not required to accept

the withdrawal does not mean its refusal to do so was not discriminatory.

Accordingly, the Commission finds that this issue states a claim.

Issue 3

Regarding this issue, i.e., that the complainant was not given

an opportunity to compete for the Position, the FAD found that

the complainant was not aggrieved. We agree with that conclusion.

Specifically, the record reveals that the Position was never advertised

on a permanent basis. For that reason, neither the complainant nor any

other individual was ever actually eligible to compete for the Position.

Accordingly, we find that this issue was properly dismissed.

Issue 4

The agency premised its dismissal of this issue on its determination

that the complainant had not engaged in prior EEO activity. Although it

is undisputed that the complainant has never participated in the EEO

process, he states on appeal that he satisfied Title VII's �opposition

clause� insofar as he �complained repeatedly about the discriminatory

practices of the agency in failing to provide him with adequate staffing

and resources.�

The Commission has previously held that Title VII's anti-reprisal

provision, in addition to protecting participation in the EEO

process, also protects �those who oppose discriminatory employment

practices.� Whipple v. Department of Veterans Affairs, EEOC Request

No. 05910784 (February 21, 1992). Although the complainant alleges

that he challenged �discriminatory practices,� it is not apparent

to the Commission that his characterization of these practices as

�discriminatory� was contemporaneous with the actions taken by the

agency he alleges were retaliatory.<3> In this regard, the complainant

has offered no specifics regarding what he said to management which

could be construed as opposing discrimination. Additionally, we note

that the complainant's letter of resignation, in which he mentions

two issues that would later become allegations in his EEO complaint,

makes no mention of discrimination. For these reasons, the Commission

finds the complainant has not demonstrated that he engaged in activity

sufficient to satisfy the �opposition clause.� Accordingly, because the

only basis the complainant cited with regard to Issue 4 was reprisal,

we find that the issue was properly dismissed.

CONCLUSION

After a review of the complainant's request for reconsideration, the

previous decision, and the entire record, the Commission denies the

request but reconsiders the decision on its own motion. The decision of

the Commission in Appeal No. 01973455 (October 22, 1997) is REVERSED and

the agency's final decision is MODIFIED. Because this decision addresses

the agency's final decision for the first time, reconsideration rights

are being provided regarding the portion of this decision that addresses

the final decision.

ORDER (E0400)

The agency is ORDERED to process Issues 1 and 2 in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (Q0400)

This decision affirms the agency's final decision/action 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 WITHIN NINETY (90) CALENDAR

DAYS from the date that you receive this decision 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 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:

__07-10-00____ _____________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

01 On 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.

02 What the complainant filed on March 26, 1997, was an appeal brief.

03 In other words, it appears that the complainant did not characterize

the practices as �discriminatory� until he filed his formal complaint,

which would have been subsequent to the alleged retaliation.