01A20255
07-12-2002
Lee Black, Complainant, v. J. Timothy O'Neill, Chairman, Federal Housing Finance Board Agency.
Lee Black v. Federal Housing Finance Board
01A20255
July 12, 2002
.
Lee Black,
Complainant,
v.
J. Timothy O'Neill,
Chairman,
Federal Housing Finance Board
Agency.
Appeal No. 01A20255
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to his complaint 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 Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.; and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The Commission accepts the appeal in accordance
with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office regarding claims of discrimination
based on race, sex, age and disability. Informal efforts to resolve
complainant's concerns were unsuccessful. Subsequently, complainant
filed a formal complaint claiming:
(1) I was not notified in 1997 - 1998; (2) I was not selected and also
not determined eligible for grade level applied for and not on certificate
of eligibles.
On September 18, 2001, the agency issued a decision dismissing the
complaint for failure to state a claim. Specifically, the agency
found that in his formal complaint, complainant did not identify which
position he applied for. Further, complainant failed to explain how he
was treated differently than any other applicant.
The regulation set forth at 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 21, 1994).
The only proper questions in determining whether a claim is within the
purview of the EEO process are (1) whether the complainant is an aggrieved
employee and (2) whether he has alleged employment discrimination
covered by the EEO statutes. An employee is "aggrieved" if he has
suffered direct and personal deprivation at the hands of the employer.
See Hobson v. Department of the Navy, EEOC Request No. 05891133 (March
2, 1990). Here, complainant asserts on appeal that he was not selected
for positions posted under vacancy numbers 97-24 and 99-23. In its
reply brief, the agency acknowledges that �[t]he subject of the present
appeal involves the [complainant's] application for two jobs with the
agency in 1997, Director of the Office of Policy (vacancy announcements
97-05 and 97-24) and Deputy Director of the Office of Policy (vacancy
announcement 97-23.� The agency asserts that complainant did not meet
the minimum qualifications for vacancy announcements 97-05 and 97-24
and did not apply for the position under vacancy announcement 97-23.
The Commission finds that the agency's arguments regarding complainant's
qualifications for vacancy announcements 97-05 and 97-24 go to the merits
of the claims and are irrelevant to the procedural issue of whether he
has stated a justiciable claim under the regulations. See Ferrazzoli
v. United States Postal Service, EEOC Request No. 05910642 (August 15,
1991). With regard to the claim involving vacancy announcement 97-23,
there appears to be a dispute as to whether complainant applied under
that announcement. The agency has the burden of providing evidence and/or
proof to support its final decisions. Ericson v. Department of the
Army, EEOC Request No. 05920623 (January 14, 1993); Gens v. Department
of Defense, EEOC Request No. 05910837 (January 31, 1992). Therefore,
we find that this claim must be remanded back for further processing.
Accordingly, the agency's decision to dismiss complainant's claims
regarding nonselection under vacancy announcements 97-05 and 97-24 was
improper, and is hereby REVERSED. The dismissal of the claim involving
nonselection under vacancy announcement 97-23 is VACATED. The claims
are REMANDED to the agency for further processing in accordance with
this decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
Supplement the record with evidence regarding whether complainant applied
for selection under vacancy announcement 97-23. Within fifteen (15)
calendar days of the date this decision becomes final, the agency
determine whether to process this claim and notify complainant
accordingly.
Process the remanded claims regarding nonselection under vacancy
announcements 97-05 and 97-24 in accordance with 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 notice to complainant regarding the claim involving
vacancy announcement 97-23, a copy of the 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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (R0900)
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 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
July 12, 2002
__________________
Date