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.