05980520
04-21-2000
John D. Powderly, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
John D. Powderly v. Department of the Navy
05980520
April 21, 2000
John D. Powderly, )
Complainant, )
)
v. ) Request No. 05980520
) Appeal No. 01971557
Richard J. Danzig, ) Agency No. 95-00024-002
Secretary, )
Department of the Navy, )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
The agency timely initiated a request for the Equal Employment
Opportunity Commission (EEOC or Commission) to reconsider the decision
in John D. Powderly v. Department of the Navy, EEOC Appeal No. 01971557
(February 26, 1998). EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous decision where the
party demonstrates that: (1) the previous decision involved clearly
erroneous interpretation of material fact or law; or (2) the decision
will have a substantial impact on the policies, practices, or operation
of the agency. 29 C.F.R. �1614.405(b).<1>
The facts of the case are fully set forth in the previous decision, and
are incorporated by reference herein. Briefly stated, complainant filed a
formal EEO complaint alleging that the agency discriminated against him on
the bases of age (55) and reprisal (prior protected activity) with regard
to: (a) the agency's failure to promote him to the grade at which he
allegedly was performing, and (b) harassment.<2> The agency initially
accepted both allegations, identifying twelve instances of alleged
harassing conduct. The agency specifically noted in its acceptance
letter that those twelve instances were only some of the examples cited
by complainant and that, while the various instances of harassment
cited by complainant would not be investigated as separate claims of
discrimination, they would be considered as evidence of harassment.
Following further proceedings on the complaint, the agency issued a
final agency decision (FAD) which, in relevant part, rejected issue (b)
set forth above for failure to state a claim. The agency also found
that complainant could not maintain a claim of reprisal discrimination
because further investigation revealed that he had not, in fact, engaged
in protected activity prior to filing the instant complaint. On appeal,
the agency also argued that issue (b) was moot, because complainant
had voluntarily retired,<3> and because compensatory damages are not
available under the Age Discrimination in Employment Act (ADEA).
The previous decision affirmed the FAD with regard to the agency's
determination that complainant could not maintain a claim of reprisal
discrimination because he had not, in fact, previously engaged in
protected activity. However, the previous decision reversed the FAD
with regard to the claim of harassment discrimination, finding that
complainant's allegations did state a claim that was not moot, noting
as an example that complainant might ultimately be entitled to back pay.
Powderly, EEOC Appeal No. 01971557.
The agency, in its request for reconsideration, argues that the potential
entitlement to back pay referenced in the previous decision is the
identical relief which might prove available under issue (a), which
it has accepted for processing. The agency further argues that, of the
remaining instances of alleged harassing conduct identified by complainant
and cited in the agency's acceptance letter, all of them either fail
to state a claim upon which relief may be granted, are moot; or both.
The agency argues that its dismissal of issue (b) therefore was proper.
The Commission finds that the agency's request for reconsideration
fails to meet the criteria for reconsideration pursuant to 29
C.F.R. �1614.405(b), and therefore is DENIED. Although at first blush
the agency's argument appears persuasive, the agency has overlooked
the fact that its own letter of acceptance acknowledged that the twelve
instances of alleged harassing conduct set forth in that letter were not
the only incidents of harassment alleged by complainant. It was improper
for the agency to dismiss issue (b) without regard to whether the other
incidents of harassment identified by complainant were sufficient to
state a claim of discriminatory harassment and were not made moot by
complainant's retirement.
CONCLUSION
The agency's request for reconsideration is DENIED. The decision in
Appeal No. 01971557 remains the final decision of the Commission in
this case. There is no further right of administrative appeal from
this decision.
ORDER (E1199)
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 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 an
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q1199)
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:
April 21, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________________________ ______________________________
Equal Employment Assistant 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 complaint also contained a third issue, regarding dismissal of a
"grade appeal," which was dismissed as not having been raised during
EEO counseling. Complainant did not appeal the dismissal of that issue.
3Complainant has not alleged constructive discharge in connection with
his retirement.