Martin Johnson, Sr., Appellant,v.Robert E. Rubin, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJan 8, 1999
01981231 (E.E.O.C. Jan. 8, 1999)

01981231

01-08-1999

Martin Johnson, Sr., Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.


Martin Johnson, Sr. v. Department of the Treasury

01981231

January 8, 1999

Martin Johnson, Sr., )

Appellant, )

)

v. ) Appeal No. 01981231

) Agency No. 97-2263

Robert E. Rubin, )

Secretary, )

Department of the Treasury, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning 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, as amended, 29 U.S.C. �621 et seq. The final agency

decision was received by appellant on October 30, 1997. The appeal

was postmarked November 22, 1997. Accordingly, the appeal is timely

(see 29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC

Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint as untimely and for failure to state a claim.

BACKGROUND

The record of the instant case indicates that appellant, a current

agency employee, applied and was interviewed for a position as an Ink

Maker with the Bureau of Engraving and Printing. The position described

by Vacancy Announcement No.97-0008-SRP opened on February 7, 1997 and

closed on February 18, 1997. During his interview, appellant expressed

his opinion that the agency had improperly classified the position

and asked the interviewing panel whether the classification would be

corrected. Appellant was advised that no change in the classification

of the position would be made. Thereafter, appellant asked that his

application be withdrawn from consideration for the position.

Thereafter, on June 3, 1997 appellant contacted an EEO counselor regarding

allegations of discrimination. Specifically, appellant alleged that he

was discriminated against when (1) the agency failed to select him for the

vacant Ink Maker position; and (2) the agency failed to adopt a suggestion

made by appellant in December 1994. The record indicates that by letter

dated July 29, 1997 appellant was asked to clarify whether allegation (1)

of his complaint challenged the agency's classification of the position

or, whether he was alleging discrimination in his non-selection for

the position. The agency also advised appellant that if allegation

(1) alleged that the agency improperly classified the position, he was

required to provided an explanation for not seeking counseling within

forty-five (45) days of the closing date of the announcement, or by

February 18, 1997. Appellant indicated that allegation (1) concerned

the agency's non-selection of him for the vacant position.

Informal efforts to resolve appellant's concerns were unsuccessful.

Accordingly, on July 13, 1997, appellant filed a formal complaint

alleging that he was the victim of unlawful employment discrimination

on the bases of race (black), and age (7-14-41).

The record further indicates that on September 8, 1997 the agency issued

an initial decision (FAD-1) accepting for investigation, allegation (1) of

appellant's complaint, but dismissing allegation (2) as untimely. FAD-1

indicated that allegation (1) concerned his non-selection for promotion.

During the agency's investigation of allegation (1) appellant provided an

affidavit in which he stated that he knew he would not be chosen to fill

the vacant position once he requested that his application be withdrawn.

As a result of its investigation of allegation (1), the agency issued a

decision on October 22, 1997 (FAD-2), dismissing appellant's complaint.

FAD-2 determined that appellant's complaint failed to state a claim and

that appellant failed to demonstrate that he was an aggrieved employee

within the meaning of EEOC Regulations. The agency also found that

allegation (1) was raised with the EEO counselor in an untimely manner.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.103(a) covers individual and class

complaints of employment discrimination and retaliation prohibited by

Title VII (discrimination on the basis of race, color, religion, sex and

national origin), the ADEA (discrimination on the basis of age when the

aggrieved individual is at least 40 years of age), the Rehabilitation

Act (discrimination on the basis of disability) and the Equal Pay Act

(sex-based wage discrimination). Complaints alleging retaliation are

also considered to be complaints of discrimination. Specifically,

appellant must allege some direct harm which affects a term, condition,

or privilege of employment. See Riden v. Department of the Treasury,

EEOC Request No. 05970314 (October 2, 1998).

EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall

dismiss a complaint that fails to state a claim under 29 C.F.R. �1614.103

or �1614.106(a). A review of allegation (1) in appellant's complaint

fails to indicate that he suffered an injury or a harm as a result of

the agency's actions. To be aggrieved under Title VII, an appellant must

allege and show that he/she has suffered an injury in fact. See Hackett

v. McGuire Bros., 445 F.2d 447 (3rd Cir. 1971).

In the instant case, appellant alleges that the agency discriminated

against him when it did not select him for a vacant position. The record

herein, specifically appellant's investigative affidavit, reveals that

appellant removed himself from consideration for the position when

he requested that his application be withdrawn. By his own actions,

appellant ensured his non-selection for the position. With respect to

allegation (1) we find that appellant has failed to demonstrate that he

suffered a direct and personal deprivation at the hands of the agency.

To the extent that allegation (1) concerns the classification of the

vacancy, we agree with the agency that appellant contacted the counselor

in an untimely manner as he should have had a reasonable suspicion of

discrimination at the time of the vacancy announcement. The Commission

further finds that allegation (2) concerning the agency's failure to

adopt a suggestion made by appellant in December of 1994 was untimely

raised with an EEO counselor. Appellant has not shown that he only

developed a reasonable suspicion of discrimination sometime during the

45 day period preceding his counselor contact.

CONCLUSION

Accordingly, the agency's decision dismissing appellant's complaint is

hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (MO795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a

timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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. If you file a request to reconsider and also file a

civil action, filing a civil action will terminate the administrative

processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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 8, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations