01a02329
05-22-2000
Jackie W. Stanfill, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Jackie W. Stanfill v. Department of the Navy
01A02329
May 22, 2000
.
Jackie W. Stanfill,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A02329
Agency No. DON 99-00251-074
DECISION
The complainant timely filed an appeal with this Commission from a final
agency action, dated January 10, 2000, which the agency issued pursuant to
64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter referred
to as EEOC Regulation 29 C.F.R. � 1614.107).<1> The Commission accepts
the complainant's appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
The complainant alleged that the agency discriminated against him
based on his age (50) and in retaliation for his prior EEO activity,
his whistle-blowing claim, and his unfair labor practice (ULP) claim,
when it did not promote him to the position of General foreman, WS-15,
on April 19, 1999. The agency dismissed the complainant's non-promotion
claim on the grounds that he had not applied for the position and that
whistle-blowing and ULP activities are not protected bases under 29
C.F.R. � 1614.103.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission REVERSE the dismissal.
While the agency correctly indicated whistle-blowing and filing ULP
charges, in and of themselves, are not protected EEO activities, such
activities are protected if the content of the whistle-blowing allegations
or the ULP charge constitute opposition to any unlawful EEO practice.
See 29 C.F.R. � 1614.101(b). On remand, the agency's investigator should
obtain evidence of the content of the complainant's whistle-blowing
allegations and his ULP charge so as to permit a determination as to
whether they constituted protected EEO activity.
As to the agency's dismissal of the complainant's promotion claim, the
Commission finds that the agency wrongfully dismissed the complainant's
non-promotion claim based its view of the merits of the claim. See Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997)
at n.3; and Ferns v. Department of the Army, EEOC Request No. 05920597
(September 10, 1992) (agency's argument that the complainant was
ineligible for position goes to the merits of the complaint).
In so finding, the Commission observes that the agency placed the
selectee in the General Foreman, WS-15 position, effective April 3, 1999,
not to exceed June 21, 1999, prior to his selection for the position of
General Foreman, WS-15, not to exceed one year, effective May 16, 1999,
which was made on May 12, 1999. The complainant alleged in his complaint
that the selectee did not apply for the position until after he had been
placed in the position. The selectee's initial placement in the position,
without any competition evidenced in the record, lends some credence
to the complainant's claim that the agency places people in positions
without their having to apply. The Commission also notes that appearance
of preselection could have discouraged the complainant and other employees
from applying for the position. These matters should be investigated as
part of the complainant's non-promotion claim. The Commission further
finds that the complaint at issue, as addressed in the EEO Counselor's
Report, encompasses both of the complainant's non-selections for the
General Foreman position on an unspecified date prior to April 3, 1999,
and on May 12, 1999.
ORDER (E0400)
The agency is ORDERED to process the remanded claims 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 claim 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).
STATEMENT OF RIGHTS - ON APPEAL
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, [PAGE 4] 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 (R0400)
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 (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 [PAGE 5] 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
May 22, 2000
__________________
Date
1On 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.