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.