01994961
06-14-2001
Glen Golden, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Glen Golden v. Department of the Interior
01994961
6/14/01
.
Glen Golden,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01994961
Agency Nos. LSM-97-017, LSM-98-006
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaints 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. In his first complaint, complainant alleged
that he was discriminated against on the basis of race (Native American)
when in February 1997 and on March 24, 1997, he was denied a desk audit.
In his second complaint, complainant alleged he was discriminated against
on the basis of race when the issues in his first complaint were not
correctly defined, and when the confidentiality involved in the EEO
process was breached.
The record reveals that during the relevant time, complainant was employed
as a Civil Engineer in the Office of Surface Mining, at the agency's
Denver, Colorado facility. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed two formal
complaints on July 30, 1997 and January 27, 1998. At the conclusion of
the investigations, complainant was informed of his right to request a
hearing before an EEOC Administrative Judge or alternatively, to receive
a final decision by the agency. Complainant requested that the agency
issue a final decision.
In its FAD, the agency concluded that in regards to his first complaint,
complainant failed to establish a prima facie case in that he failed to
prove that the agency officials responsible for the denial of his desk
audit were aware that he was Native American. Assuming, arguendo, that
complainant established an inference of discrimination, the agency found
it articulated a legitimate, nondiscriminatory reason for its action.
In that regard, the agency found that complainant requested a desk
audit from his supervisor in January 1997 after complainant received a
revised position description. Complainant's supervisor (Caucasian) in
turn, informed complainant that he should contact the Personnel Office.
Complainant then contacted the Supervisory Personnel Specialist who
informed complainant that he would not give a desk audit unless it
was requested by complainant's supervisor. When complainant's Acting
Supervisor contacted the Supervisory Personnel Specialist to request a
desk audit, the Supervisory Personnel Specialist confirmed the request
with complainant's supervisor. Complainant's supervisor informed
the Supervisory Personnel Specialist that he did not request a desk
audit on complainant's behalf. Thereafter, the Supervisory Personnel
Specialist informed complainant that he would not conduct a desk audit,
but that complainant could appeal the decision.
Thereafter, complainant was informed of the proper procedures in which to
appeal the denial of his request for a desk audit. The agency found that
complainant initially pursued his appeal. However, by complainant's
own admission, he did not submit all of the requested materials.
Complainant was later informed that his appeal would not be considered
for that reason. The instant complaint followed.
The agency found complainant failed to establish that the agency's reason
for its action was a pretext for discrimination. Furthermore, the agency
found no evidence of a discriminatory animus on the part of the agency.
As for complainant's second complaint, the agency dismissed the complaint
for failure to state a claim. Specifically, the agency found the
second complaint alleged dissatisfaction with the EEO process rather
than an adverse employment action. For that reason, the agency found
the complainant was not aggrieved.
On appeal, complainant contends that he experienced substantial complaints
processing problems in pursuit of his complaints. He claims that the
agency misidentified the issues involved in the complaint, breached
confidentiality, failed to comply with pre-complaint time limits and
was not responsive to his requests. The agency requests that we affirm
its FAD.
As an initial note, we agree with the agency's finding that complainant's
second complaint alleged dissatisfaction with the EEO process, and
was properly dismissed. Under 29 C.F.R. 1614.107(a)(8), an agency
shall dismiss an entire complaint that alleges dissatisfaction with
the processing of a previously filed complaint. The Commission finds
that in complainant's second formal complaint, complainant raises claims
pertaining to the EEO process related to his first complaint. Therefore,
under the Commission's regulations, the agency is required to dismiss
complainant's claims of improper processing.
When claims of improper processing are raised, the complainant should
be referred to the agency official responsible for the quality of
complaints processing, and the agency should earnestly attempt to
resolve any dissatisfaction with the complaints process as early and
expeditiously as possible. See EEO Management Directive-110, 5-25
(November 9, 1999). The record reveals complainant attempted to do this,
and the EEO Counselor's Report provides some responses to complainant's
claims and suggestions. After a careful review of complainant's claims
of improper complaint processing, we find that the proper method for
addressing such matters would be within the continued processing of
the first complaint, which is addressed herein. Any remedial relief
to which complainant would be entitled would necessarily involve the
processing of the first complaint. We further note that complainant's
first complaint was identified correctly in all material respects,
and he was provided sufficient opportunity to expand on the complaint
in his initial affidavit and rebuttal affidavit. The delays during the
informal complaint process appear to be partially due to complainant's
request for a specific EEO Counselor.
As such, applying the standards set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), the Commission agrees with the
agency that complainant failed to establish a prima facie case of
race discrimination because he failed to establish the relevant agency
officials were aware of his race. In reaching this conclusion, we note
that although complainant alleges cartoons expressing an anti-Native
American bias were displayed at the agency, complainant failed to
establish any nexus between the relevant agency officials and the
cartoons.
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. In reaching this conclusion,
we note that complainant failed to adequately rebut the agency's finding
that desk audits were not performed unless supported by a supervisor.
Complainant's supervisor averred that after review of complainant's
position description, he found it was properly graded GS-12. He further
averred that other Mining Engineers outside of complainant's protected
class are also in positions that are graded GS-12. The record reveals
that when complainant's supervisor informed complainant he would not
support the desk audit, complainant failed to pursue the matter by
supplying relevant materials as directed.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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 (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
6/14/01
Date