01991133
02-15-2000
James P. Yaeger, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
James P. Yaeger v. Department of the Navy
01991133
February 15, 2000
James P. Yaeger, )
Complainant, )
)
v. ) Appeal No. 01991133
) Agency No. DON 98-65888-043
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
On July 29, 1998, complainant filed a complaint alleging unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq., Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1> By a final decision (FAD) dated October
16, 1998, the agency dismissed the complaint. On November 20, 1998,
complainant appealed to this Commission. The appeal is accepted as
timely in accordance with EEOC Order No. 960.<2>
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (Caucasian), sex (male), national
origin (German), religion (none), age (born May 14, 1946), and in reprisal
for prior EEO activity when:
In March 1998, complainant was not selected for a WG-3414-10 Machinist
position; and
In April 1992, complainant was not selected for a WG-5301-8/10 Aircraft
Launching and Arresting Device Mechanic position.
The agency dismissed both claims for failure to state a claim.
Specifically, the agency found that complainant never identified a
vacancy announcement for either position. Further, the agency found
that no vacancy was filled during the relevant time in claim (1), and
that complainant never applied for the position described in claim (2).
Alternatively, the agency dismissed claim (2) for untimely counselor
contact, because complainant did not seek EEO Counseling until April
28, 1998.
On appeal, complainant argues that the agency violated the Civil Service
Reform Act by not changing his position description to reflect his
duties, and thereby inhibiting his attempts at career advancement.<3>
Complainant also claims that agency EEO did not evaluate his case fairly.
Complainant attached an audit of job descriptions which found inaccuracies
in the position descriptions, and an "Applicant Active Application
List," dated July 14, 1998. The list notes that complainant applied
under Vacancy Announcement 95-0558 for a WG-3414-10 Machinist position
on July 8, 1998. No other information is given for the status of
the application. Complainant also attached an e-mail dated November
17, 1997, addressed to a co-worker, concerning a machinist position.
The e-mail asks the co-worker to "have interested machinists submit a
page memorandum outlining there [sic] experience . . . ."
In response, the agency contends that with regard to claim (1), there
was no vacancy available, no vacancy announced, and no promotion given.
Regarding claim (2), the agency notes that complainant waited over
six years to contact a counselor, far beyond the forty-five (45) days
allotted under EEOC Regulations.
In the undated Counselor's Report, complainant contended that he remained
in the same position without promotion for fourteen years, while a
younger, less qualified employee was promoted. The report also explains
that in March 1998, complainant found an e-mail dated November 17, 1997,
regarding an opening for a machinist position. The report also states
that complainant first contacted an EEO Counselor on April 28, 1998.
The record also contains handwritten notes regarding the complaint,
apparently prepared by an agency official as a draft copy of the FAD.
The notes include a statement that "the individual [complainant]
compare[s] [himself] to was already a WG-10 and was only reassigned into
[complainant's] work area."
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual 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 the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Regarding claim (2), the incident occurred in April 1992, but complainant
did not seek counseling until April 28, 1998. Complainant has provided
no evidence to justify his six-year-delay in contacting a counselor.
See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984)
(per curiam) ("One who fails to act diligently cannot invoke equitable
principles to excuse lack of diligence"); Rys v. United States Postal
Service, 886 F.2d 443, 446 (1st Cir. 1989) ("to find succor in equity a
Title VII plaintiff must have diligently pursued her claim"). Therefore,
the agency's dismissal of claim (2) for untimeliness was proper.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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
22, 1994).
Complainant contends that he was harmed when a less-qualified employee
received a promotion. The record contains adequate evidence to bring into
question whether complainant had an active application, whether a GS-10
position was available, and whether another employee was moved into the
position to avoid promoting complainant. The denial of a promotion or
position, if true, would render complainant aggrieved. However, it is
unclear from the present record whether another employee was placed in
a GS-10 position in complainant's unit, whether a promotion was given
to another employee, whether a vacancy was announced and/or filled.
Therefore, the agency must conduct a supplemental investigation regarding
claim (1) on remand.
Regarding the claim on appeal that the agency improperly processed
his complaint, complainant should be referred to the agency official
responsible for the quality of complaints processing. See EEOC -
Management Directive (MD) 110 (as revised November 9, 1999), 5-25.
The agency should attempt to resolve any dissatisfaction as early and
expeditiously as possible. MD-110, 5-26. Further, the agency official
responsible for the quality of complaints processing must add to the
complaint file a record of complainant's concerns and any actions the
agency took to resolve the concerns. Id.
CONCLUSION
Accordingly, the agency's dismissal of claim (1) is VACATED, and the
claim is REMANDED for a supplemental investigation as provided below.
The agency's dismissal of claim (2), however, is AFFIRMED.
ORDER
The agency is ORDERED to conduct a supplemental investigation regarding
the matter stated in claim (1). In the course of this investigation,
the agency must:
Obtain an affidavit or statement from complainant regarding whether
anyone was reassigned to a WG-10 Aircraft Launching and Arresting Device
Mechanic position. The agency should instruct complainant to give the
name of any such person, and the date on which complainant realized that
the person was serving in the position. The agency also should obtain
information from complainant regarding the dates on which complainant
applied for a WG-10 position, copies of any available documents, any
non-selections for WG-10 positions, and the dates on which he became
aware of the non-selection.
Obtain any and all documentation regarding the reassignment of a WG-10
employee to an Aircraft Launching and Arresting Device Mechanic position.
Obtain a copy of Vacancy Announcement 95-0558, including any information
regarding any selections made under this Vacancy Announcement.
Obtain an affidavit or statement from the author of the November 17,
1997 e-mail, regarding why the e-mail solicits information of machinists'
qualifications. Obtain any other information available regarding this
e-mail transmission including who authorized it, and why.
Obtain any other information relevant to a determination of whether
complainant was denied a promotion, or was not selected for a WG-10
Aircraft Launching and Arresting Device Mechanic vacancy.
The agency shall complete its investigation within thirty days of the
date this decision becomes final, and once completed, shall provide
complainant a copy of the supplemental investigation. Thereafter, the
agency shall issue a new final decision or notice of processing regarding
complainant's claim that he was denied a promotion to a WG-10 Aircraft
Launching and Arresting Device Mechanic position. This decision or
notice must be based upon the information obtained in the supplemental
investigation and applicable EEO laws; also, it must be rendered within
forty-five (45) calendar days of the date this decision becomes final.
Further, the agency must send a copy of its final decision or notice of
processing 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 (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)
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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
February 15, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
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.
2The agency was unable to supply a copy of a certified mail return
receipt or any other material capable of establishing the date complainant
received the agency's dismissal, final action or decision. Accordingly,
since the agency failed to submit evidence of the date of receipt, the
Commission presumes that complainant's appeal was filed within thirty
(30) days of receipt of the agency's dismissal, final action or decision.
See, 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.402).
3Complainant refers to the "prohibited personnel practices" found at
5 U.S.C. � 2302. The Civil Service Reform Act (CSRA) provisions are
enforced by the Merit Systems Protection Board (MSPB). See generally 5
U.S.C. � 1204 (1999) (concerning the powers and functions of the MSPB).
The Commission does not enforce the provisions of the CSRA -- with respect
to federal employees, the EEOC only handles discrimination complaints
brought under 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). See 29 C.F.R. �
1614.103(a). The Commission only applies the CSRA as it relates to the
processing of "mixed cases" involving both the MSPB and EEOC. See 29
C.F.R. � 1614.303.