Leonard R. Hilton, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMay 12, 2000
01990467 (E.E.O.C. May. 12, 2000)

01990467

05-12-2000

Leonard R. Hilton, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Leonard R. Hilton v. Department of the Navy

01990467

May 12, 2000

Leonard R. Hilton, )

Complainant, )

)

v. ) Appeal No. 01990467

Richard J. Danzig, ) Agency No. 9700027S01

Secretary, )

Department of the Navy, )

Agency. )

____________________________________)

DECISION

On October 19, 1998, complainant filed a timely appeal with this

Commission from an agency decision dated September 14, 1998, pertaining

to his complaint of unlawful employment discrimination in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e

et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq.<1> In his complaint, complainant

alleged that he was subjected to discrimination on the bases of race

(Black), gender (male), and age (D.O.B. 7/28/41) when:

In July 1996, complainant was made aware that the Director marked his

work performance as unacceptable (Level 1) on a close-out performance

rating dated March 29, 1996. The close-out rating was provided to

complainant's new supervisor.

The agency dismissed complainant's complaint pursuant to the regulation

set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and

hereinafter referred to as 29 C.F.R. � 1614.107(a)(1))

for failure to state a claim. Specifically, the agency stated that

complainant was not aggrieved by the close-out performance rating.

In addition, the agency dismissed complainant's complaint pursuant to the

regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified

and hereinafter referred to as 29 C.F.R. � 1614.107(a)(5)) for alleging a

proposal to take a personnel action. The agency noted that complainant

received a final rating of record for the period December 10, 1995,

through June 30, 1996, with an Exceeds Fully Successful (Level 4) rating

for which complainant received a performance award effective September

17, 1996. The agency stated that complainant's final rating did not refer

to the close-out rating or rely on it in any way and further noted that

the close-out rating has not been made part of complainant's official

personnel file. Thus, the agency claimed that the complaint should be

dismissed for alleging a preliminary step to taking a personnel action.<2>

Upon review, we find that the agency improperly dismissed complainant's

complaint. The complaint involved a close-out rating, which was issued

by the agency Director. A close-out rating is issued when, inter alia,

an employee completes a detail or temporary promotion of 120 days or

longer. The record indicates that the close-out rating was forwarded

to complainant's new supervisor of record, who ultimately issued his

annual rating of record. While the agency emphasized that the rating is

not included in complainant's official personnel file, it appears that

the rating is maintained in a supervisory file. While complainant's

new supervisor acknowledged receiving the close-out rating and stated

that he considered the evaluation but did not use it as part of his own

evaluation of complainant, the existence of this close-out rating in

the supervisory file, i.e., this adverse evaluation of complainant's

performance, could be reviewed by a future supervisor of complainant

and negatively impact complainant. We find, therefore, that because

the close-out rating was reduced to writing and appears to still exist

in a supervisory file, complainant was aggrieved by the existence of

the rating. See Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

Accordingly, the agency's final decision is REVERSED and the complaint

is REMANDED to the agency for further processing in accordance with the

Order below.

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 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 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, 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 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:

May 12, 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 dismissed the other claims included in complainant's

original complaint and the Commission affirmed the agency's dismissal.

EEOC Appeal No. 01972570 (April 22, 1998). Volume 64 Fed. Reg. 37, 644,

37, 656 (1999)(to be codified and hereinafter referred to as 29 C.F.R. �

1614.107(b)) provides that where an agency decides that some but not all

of the claims in a complaint should be dismissed, the agency shall notify

the complainant of its determination; however this determination is not

appealable until final action is taken on the remainder of the complaint.

In the present case, the agency dismissed the only claim accepted by

its previous decision; therefore, complainant's complaint is no longer

considered a partial dismissal and is appropriately before the Commission.