Paul E. Davis, Appellant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionNov 13, 1998
01971510 (E.E.O.C. Nov. 13, 1998)

01971510

11-13-1998

Paul E. Davis, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.


Paul E. Davis, )

Appellant, )

)

v. ) Appeal No. 01971510

) Agency No. ORSEEO-96-0072

Donna E. Shalala, )

Secretary, )

Department of Health and )

Human Services, )

Agency. )

______________________________)

DECISION

On December 10, 1996, appellant filed a timely appeal with this Commission

from a final agency decision ("FAD") received by him on November 14,

1996, pertaining to his complaint of unlawful employment discrimination in

violation of the Age Discrimination in Employment Act of 1967 ("ADEA"),

as amended, 29 U.S.C. �621 et seq. In his complaint, appellant alleged

that he was subjected to discrimination on the basis of age (DOB 11/23/54)

when in September 1992, his FS-081 Fire Protection Inspector position

was not reclassified during the FS-081 Fire Protection and Prevention

Series Reclassification.

The agency dismissed appellant's complaint pursuant to 29

C.F.R. �1614.107(a), for failure to state a claim. Specifically, the

agency determined that at the time of the alleged discriminatory action,

appellant was not forty (40) years of age or older, and, accordingly,

lacked standing to bring a discrimination complaint under the ADEA.

On appeal, appellant contends that as a result of the agency's decision

not to reclassify his position, he was not able to apply for a recent

GS-081-12 Fire Chief position vacancy that was announced. Appellant was

over the age of forty at the time that the Fire Chief position vacancy

arose, and argues that because the underlying classification issue caused

the present harm, he has standing to raise a claim of age discrimination

for the 1992 reclassification decision.

EEOC Regulation 29 C.F.R. �1614.107(a) 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;

�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 21, 1994).

In the instant case, we find that the agency properly dismissed

appellant's complaint for failure to state a claim. Initially, we

conclude that the agency's September 1992 reclassification decision was

the actual employment action which appellant alleged was discriminatory.

Although appellant alleged that this decision had repercussions that

affected his career opportunities after he had turned 40, the record

clearly indicates that at the time of the reclassification decision,

appellant had not yet reached that age. As the ADEA only permits

individuals forty (40) years or older to raise allegations of age

discrimination, at the time of the agency's alleged discriminatory action,

appellant was not within the protected group covered under the statute.

Accordingly, we find that appellant lacked standing to raise the instant

age discrimination claim, and, therefore, the agency's decision to

dismiss his complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

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. 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 (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:

November 13, 1998

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations