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