01993000_01995962
03-22-2000
Mervyn Tvinnereim, )
Complainant, )
)
v. ) Appeal Nos. 01993000
) 01995962
Kenneth S. Apfel, )
Commissioner, ) Agency Nos. 99-0194-SSA
Social Security Administration, ) 99-0363-SSA
Agency. )
______________________________)
DECISION
The complainant filed timely appeals with this Commission from two
separate final agency decisions (FADs) 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 complaints, the complainant alleged
that he was continuously subjected to discrimination on the bases of age
(56) and reprisal for previous EEO activity.
The agency dismissed both of the complainant's complaints pursuant
to 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
and because the matter was pending a decision by EEOC. In both FADs
the agency relies on several of the complainant's previous complaints
which have been appealed as support for its dismissal of the current
complaints as pending a decision by EEOC.<2>
Complaint No. 99-0194-SSA
On February 8, 1999, the complainant filed a complaint alleging that
he had been discriminated against on the basis of age and reprisal for
previous EEO activity when he was not permitted to compete for vacancy
announcements (VANs) 98-MS-044 in Fargo, North Dakota and 98-MS-045 in
Salt Lake City, Utah.
The agency dismissed the complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim and because the matter
was pending a decision by the EEOC. Specifically, the agency stated
that the complaint failed to state a claim because the complainant was
alleging a breach of the1996 settlement agreement and that allegations of
breach should be brought to the EEO Director's attention, not filed in a
new complaint of discrimination. Moreover, the complainant's previous
claims of breach of the 1996 settlement agreement were still pending a
decision by either the agency or the EEOC.
Complaint No. 99-0363-SSA
On June 11, 1999, the complainant filed another complaint alleging
that he had been discriminated against on the basis of age and reprisal
when he was not selected for VAN 98-MS-047 which closed on December 30,
1998, and was reannounced as VAN 99-MS-006, and which closed on February
26, 1999.
Again, the agency dismissed the complainant's complaint pursuant to
29 C.F.R. � 1614.107(a)(1) for failure to state a claim and because
the matter was pending a decision by the EEOC. Specifically, the
agency stated that the complaint failed to state a claim because the
complainant was alleging a breach of the 1996 settlement agreement
and that allegations of breach should be brought to the EEO Director's
attention, not filed in a new complaint of discrimination. Moreover, the
complainant's previous claims of breach of the 1996 settlement agreement
were still pending a decision by either the agency or the EEOC.
In both appeals, the complainant asserted that the agency mischaracterized
his complaints as breach of settlement agreement cases. He further
contended that in each of his complaints, he was alleging continued
retaliation and discrimination based on age, not a breach of the previous
1996 settlement agreement, where in exchange for withdrawing several of
his EEO complaints, the agency agreed, in pertinent part, to provide
priority consideration to the complainant for three District Manager,
GS-13 positions.
ANALYSIS AND FINDING
EEOC Regulation 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. 64 Fed. Reg. 37,644,
37,655-56 (1999) (to be codified and hereinafter cited as 29 C.F.R. �
1614.103); 29 C.F.R. � 1614.106(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). Moreover, 29 C.F.R. �
1614.107(a)(1) provides that the agency shall dismiss a complaint that
states the same claim that is pending before or has been decided by the
agency or Commission.
In the instant complaints, the complainant is alleging claims based on
separate distinct events - nonselections - which occurred subsequent to
the parties' 1996 settlement agreement. We note that in each complaint,
the complainant provides a specific VAN, none of which are contained
in previous complaints. Furthermore, in the instant complaints, the
complainant claims that he was either not permitted to file for specific
VANs or that he was not selected for a specific VAN, not that he was
denied priority consideration. We find that these claims are not embodied
in previous complaints pending before the agency or the Commission.
Therefore, the agency improperly dismissed these complaints as stating
the same claim which is pending before another body.
Moreover, where the complainant alleges he was not selected because of
discrimination or reprisal, we find that he has alleged a specific harm
and therefore stated a claim. Thus, we find that the agency improperly
dismissed these complaints for failure to state a claim. Where alleged
matters constitute reprisal claims or claims of further discrimination
on the part of the agency, the claims should be processed as separate
complaints under 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified at 29
C.F.R. � 1614.106) rather than claims of noncompliance with a settlement
agreement. See 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified at
29 C.F.R. � 1614.504); Eby v. United States Department of Agriculture,
EEOC Request No. 05910875 (January 10, 1992); Anthony v. Department of
Education, EEOC Request No. 05910142 (April 18, 1991).
Accordingly, the FADs dismissing the complainant's complaints were
improper and are VACATED. The complaints are REMANDED to the agency for
further processing in accordance with this decision and the applicable
regulations.
ORDER (E1199)
The agency is ORDERED to consolidate and process the remanded
complaints 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 complaints 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 an
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:
March 22, 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
1 On 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.
2 See Tvinnereim v. Social Security Administration, EEOC Appeal
No. 01966003 (January 29, 1998) (where this Commission found that the
agency had not breached the 1996 settlement agreement, and which is
currently at this Commission awaiting reconsideration, EEOC Request
No. 05980341) and Tvinnereim v. Social Security Administration, EEOC
Appeal No. 01974368 (February 24, 1998) (where the Commission remanded
the complainant's breach claim for further processing, which the agency
states that while the investigation is complete, it has not yet issued
a FAD on).