01A01748
07-06-2000
Paul A. LaViolette, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Paul A. LaViolette v. Department of Commerce
01A01748
July 6, 2000
Paul A. LaViolette, )
Complainant, )
)
v. ) Appeal No. 01A01748
) Agency No. 99-56-00604
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision 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.<1> The Commission accepts the appeal in
accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. �1614.405).
Complainant contacted the EEO office regarding claims of discrimination
based on reprisal. Informal efforts to resolve complainant's concerns
were unsuccessful. Subsequently, on June 28, 1999, complainant filed a
formal complaint. The agency framed the claim as follows:
The agency retaliated against complainant because of his unconventional
beliefs about cold fusion and other technologies when:
1. On March 24, 1999 a Supervisory Patent Examiner informed him that
his employment at the Patent and Trademark Office would be terminated
on April 9, 1999; and,
2. On April 9, 1999, complainant attended a job fair sponsored by the
Patent and Trademark Office and was denied an opportunity to be rehired
in a different Technology Center.
On September 13, 1999, the agency issued a decision dismissing the
complaint for failure to state a claim. Specifically, the agency
indicated that complainant did not allege reprisal for protected EEO
activity, but rather reprisal based upon his beliefs regarding cold
fusion and other technologies. The agency determined that the basis that
complainant raised is not within the protective purview of Title VII,
and therefore fails to state a claim.
On appeal, complainant agrees with the agency's determination that his
use of the term "reprisal" is in reference to his cold fusion beliefs,
rather than protected EEO activity. However, complainant argues that
"[d]iscrimination against a person on account of his beliefs is the
essence of discrimination on the basis of religion...." Therefore,
complainant contends, his beliefs in cold fusion are protected.
The regulation set forth at 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 that fails
to state a claim under 29 C.F.R. 1614.103. An agency shall accept a
complaint from an employee or applicant for employment who believes
that he or she has suffered discrimination or 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 handicap, or the Equal Pay Act (sex-based
wage discrimination). See 29 C.F.R. �1614.103(a).
"In determining which beliefs are protected under Title VII, the
Supreme Court has held that the test is whether the belief professed by
a complainant is sincerely held and whether it is, in his own scheme of
things, religious." Akers v. Department of Transportation, EEOC Appeal
No. 01932415 (May 25, 1993), citing Welsh v. United States, 398 U.S. 333
(1970). Moreover, in defining religious beliefs, our guidelines note
that "the fact that no religious group espouses such beliefs ... will not
determine whether the belief is a religious belief of the employee...."
29 C.F.R. �1605.1.
In the instant case, complainant argues that his unconventional beliefs
about cold fusion and other technologies should be viewed as a religion
and therefore protected. Complainant claims he was terminated and denied
the opportunity to be rehired because of religion, which embodies his
cold fusion beliefs. Therefore, under the applicable law noted above,
we find that the agency improperly dismissed complainant's claim of
discrimination for failure to state a claim.
Accordingly, the agency's decision dismissing the complainant was improper
and is hereby REVERSED. The complaint is REMANDED for 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:
July 6, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.