01990764
01-18-2000
Marguerite A. Prunty, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Marguerite A. Prunty, )
Complainant, )
)
v. ) Appeal No. 01990764
) Agency No. 98-62678-003
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
Complainant filed a formal complaint of discrimination on June 11, 1998,
alleging harm on the basis of age (over 40). On October 28, 1998, the
agency issued a final decision (FAD), dismissing the complaint for failure
to state a claim. In its FAD, the agency defined complainant's claim as
alleging discrimination when on April 29, 1998, complainant became aware
that management officials made statements concerning the average age of
employees, the prospect of hiring interns to drive down the average age
of employees, and the need to refresh/rejuvenate the work force.
The agency acknowledged that complainant perceived remarks from management
as meaning that they wished to replace older workers with younger ones,
which would hinder complainant's opportunity for promotion to GS-11
positions. The agency explained that complainant filed a prior complaint,
Agency Number 97-62678-001, alleging that she was discriminatorily denied
repromotion to a GS-11 position based on race. During the investigation
of the prior complaint, several management officials made statements
concerning budgetary constraints, and the hiring of interns to drive down
the average age of employees and save money. Nonetheless, the agency
dismissed the claim for failure to state a claim because, it found,
the claim involved a remark or comment unaccompanied by concrete harm.
On November 2, 1998, complainant's attorney filed a timely appeal from
the October 28, 1998 FAD with this Commission, and also wrote the agency
to dispute its definition of the claim. In her letter, complainant argued
that the issue should be defined as whether complainant was discriminated
against when the agency refused to place her in a vacant position
because it looked at the average age of the work force and decided to
hire interns in an effort to refresh/rejuvenate the work force.
On November 25, 1998, the agency issued an amended FAD, revising its
definition of complainant's claim as follows:
Complainant submitted her SF-171 (application for employment) for
repromotion to the Contract Deputy Officer position in October 1997,
and subsequently read in an investigative file on April 29, 1998 that
management sought to utilize intern labor to perform contract duties
and made statements regarding interns driving down the average age of
employees and refreshing/rejuvenating the work force.
In its amended FAD, the agency again dismissed complainant's claim for
failure to state a claim. The agency explained that complainant suffered
no harm because no interns were hired and no
contract positions were open.
Complainant timely appealed the amended FAD on December 1, 1998.
On appeal, complainant argues, through her attorney, that she suffered
harm because the agency refused to promote complainant to a vacant GS-11
position after it was announced. Complainant also asserts that she
has filed several complaints concerning remarks from management, which
should be consolidated and considered together as part of a pattern of
harassment.
Complainant contends that the agency explained in the investigation of
its prior complaint that it did not discriminate on the basis of race,
but rather on the basis of age, to deny complainant a GS-11 position.
Complainant explains that the prior complaint, Agency Number 97-62678-001,
is pending before an EEOC Administrative Judge. Complainant asserts that
she has filed a motion to dismiss the prior complaint without prejudice,
so that it can be consolidated with the present complaint.
In response, the agency argues that the issues from the prior complaint
are separate and distinct from the pending appeal. The agency
explains that the prior complaint concerns the agency's failure to
promote complainant to a Contract Deputy Officer Position, while the
present complaint concerns GS-05/GS-11 Contract Specialist positions,
and complainant's belief that the agency intends to slate interns for
those positions.
By order dated February 23, 1999, the AJ dismissed Agency No. 97-62678-001
without prejudice. The AJ explained that complainant filed a motion
to dismiss, so that Agency No. 97-62678-001 could be consolidated with
the present complaint. The AJ noted that the agency did not object to
dismissal without prejudice, but argued that the two complaints did not
involve the same issues. The order goes on to state that consolidating
cases involving separate issues did not prohibit the agency from making
separate findings in the two complaints.
The record includes a copy of the formal complaint, in which complainant
states, inter alia, that the agency intends to replace older workers
with younger workers, and believes that interns would be more suitable
for Contract Specialist positions. The record also includes a portion
of the Investigative Report for Agency No. 97-62678-001. This report
includes the affidavits that complainant believes support her claim of
age discrimination. In these affidavits, various management officials
responded to questions concerning complainant's repromotion to a GS-11
position by noting budgetary constraints and the age of the workforce.
These officials also discussed a (cost-effective) proposal to hire
interns for some GS-11 positions.
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, or portion thereof, 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).
After a review of the agency's final decision, it seems that the
agency has addressed the merits of complainant's complaint without
a proper investigation as required by the regulations. We find that
the agency's articulated reason for the action in dispute, i.e., that
no GS-11 positions are currently open and no interns have been hired,
concerns the merits of the present complaint, and is irrelevant to the
procedural issue of whether she has stated a justiciable claim under
Title VII. See Osborne v. Department of the Treasury, EEOC Request
No. 05960111 (July 19, 1996); Lee v. United States Postal Service,
EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States
Postal Service, EEOC Request No. 05910642 (August 15, 1991). Accordingly,
the agency's dismissal was improper.
Consolidation of complaints is strongly encouraged under the EEOC
Regulations, in order to avoid fragmentation of a complainant's
claims. In fact, agencies are required to consolidate two or more
complaints from the same complainant for joint processing. See 64
Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter cited
as 29 C.F.R. �1614.606); see also Management Directive 110, at 5-13
(Nov. 9, 1999).
Although the agency contends that the present complaint and Agency
No. 97-62678-001 involve different facts and different situations,
similarity of issues is not necessary in order for an agency to be
required to consolidate complaints. Furthermore, we note that these
two cases at issue are similar to the extent that they both involve
the denial of promotions for complainant. Therefore, the agency must
consolidate the present complaint and Agency No. 97-62678-001 on remand.
CONCLUSION
Accordingly, the agency's dismissal is REVERSED, and the complaint is
REMANDED for investigation with complainant's other pending complaint.
ORDER
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). Additionally, the agency must
consolidate the remanded claims with Agency No. 97-62678-001. 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 notice
of consolidation, as well as 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 (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
(R1199)
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:
January 18, 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 Equal Employment Assistant