Raymond L. Harshman, Complainant,v.Aida Alvarez, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity CommissionApr 6, 2000
01980338 (E.E.O.C. Apr. 6, 2000)

01980338

04-06-2000

Raymond L. Harshman, Complainant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.


Raymond L. Harshman v. Small Business Administration

01980338

April 6, 2000

Raymond L. Harshman, )

Complainant, )

)

v. ) Appeal No. 01980338

) Agency Nos. 04-96-545

Aida Alvarez, ) 05-96-549

Administrator, ) 06-96-552

Small Business Administration, ) 03-97-598

Agency. )

____________________________________)

DECISION

Complainant filed an appeal from two separate agency decisions dated

September 18, 1997 (dismissing 04-96-545, 05-96-549, and 06-96-552)

and October 6, 1997 (dismissing a portion of 03-97-598).<1>

I. September 18, 1997 Decision (04-96-545, 05-96-549, and 06-96-552)

In the September 18, 1997 decision the agency combined three complaints

and defined the claims as follows:

1. Complainant's directed reassignment in March 1995 to Oklahoma was

made in order to get complainant to retire.

2. Complainant's failure to achieve a "5" rating and a $5,000 bonus in

his FY95 performance evaluation in December 1995 was retaliation for

accepting the directed reassignment to Oklahoma.

3. In September 1995, when applying for an SES District Director position

in Miami, complainant's application was not rated high enough to put

complainant on the list of candidates.

4. The agency's applicant evaluation standards are intentionally biased

against older, white males.

5. The Deputy Administrator and the Counselor to the Administrator

preselected one or more Hispanic candidates who ultimately did not apply

for the position which forced the agency to select the 57 year old white

male incumbent for the position.

6. Beginning in 1994, the Administrator, the Deputy Administrator, and

other high ranking officials used a regression analysis to determine

the efficiency of each agency district office as a pretense to

cloak discriminatory acts against complainant, including the directed

reassignment to Oklahoma City, denial of a performance bonus for FY94,

reducing the performance bonus complainant was entitled to in FY95, and

excluding complainant from being interviewed for the Miami SES District

Director's position.

Claims 1, 3, and 5

The Commission finds that the agency's decision dated dismissing claims

1, 3, and 5 on the grounds that complainant failed to timely contact

an EEO Counselor is proper pursuant to the regulation set forth at 64

Fed. Reg. 37,644, 37656 (to be codified and hereinafter cited as 29

C.F.R. � 1614.107(a)(2)). Because of our disposition we do not address

whether the agency also properly dismissed claim 5 on other grounds.

Claim 2

The agency dismissed claim 2 for failure to state a claim. The agency

found that complainant failed to claim that he engaged in any protected

activity. The agency also found that complainant failed to identify any

harm to his employment position as a result of the alleged retaliation.

On appeal, complainant argues that in claim 2, he is alleging that he was

denied a "5" rating and a $5,000 bonus in FY95. Complainant also argues

that claim 2 is also based on race, color, sex, and age discrimination.

The Commission finds that complainant was aggrieved in claim 2 when he

was allegedly denied a "5" rating and a $5,000 bonus. Furthermore, we

agree with complainant that claim 2 is based on race, color, sex, and age

discrimination in addition to retaliation. Therefore, we find that claim

2 states a claim with regard to complainant's claim of race, color, sex,

and age discrimination. The Commission finds that the agency properly

dismissed the basis of retaliation from claim 2 for failing to state a

claim. 64 Fed. Reg. 37,644, 37656 (to be codified and hereinafter cited as

29 C.F.R. � 1614.107(a)(1)). Complainant failed to show in his complaint,

or on appeal, that he engaged in any protected activity as defined in

� 1614.101(b). The Commission agrees with the agency that complainant

has failed to show how accepting a directed reassignment amounts to

opposing any practice made unlawful by Title VII, the Age Discrimination

in Employment Act, the Equal Pay Act, or the Rehabilitation Act.

Claim 4

The agency dismissed claim 4 for falure to state a claim. The Commission

finds that although complainant may have been aggrieved by the alleged

discriminatory applicant evaluation standards, complainant has not listed

any harm separate from that already alleged in the instant complaints.

For instance, complainant alleged that he was not selected for the SES

Director position in claim 3. The alleged discriminatory applicant

evaluation standards are certainly relevant to claim 3, but does

not state a harm independent of the nonselection at issue in claim 3.

Therefore, we find that claim 4 is properly dismissed for failing to state

a claim for the reasons provided in the Commission's instant decision.

29 C.F.R. � 1614.107(a)(1). To the extent that complainant is attempting

to raise, in claim 4, a claim that he was not selected for the position

in claim 3 (or claim 2 concerning the directed reassignment), we find

that claim 4 is also properly dismissed for stating the same claim

that is pending before or has been decided by the agency or Commission.

29 C.F.R. � 1614.107(a)(1). Because of our disposition we do not address

the agency's other reason for dismissing claim 4.

Claim 6

On appeal complainant argues that the agency never made a regression

analysis, but instead "said it did in order to have a pretext upon which

it discriminated against [complainant]." The Commission finds that claim

6 was properly dismissed on the grounds that it stated the same claim

as raised by complainant in other claims in the complaints described in

the September 18, 1997 decision. 29 C.F.R. � 1614.107(a)(1). Claim 6

is simply evidence concerning the incidents of discrimination raised

elsewhere (claims 1, 2, and 3) in the complaints.

To the extent that complainant is only alleging harm from the purported

use of the regression analysis, the Commission finds that complainant

is not independently harmed by such a claim. Therefore, claim 6 is

also properly dismissed for failure to state a claim. 29 C.F.R. �

1614.107(a)(1). To the extent that complainant is attempting to allege

he was harmed by the denial of a performance bonus for FY94, we find

that this portion of the claim was properly dismissed by the agency for

untimely EEO Counselor contact pursuant to � 1614.107(a)(2). Because of

our disposition we do not address whether the remainder of claim 6 was

properly dismissed by the agency for untimely EEO Counselor contact.

II. October 6, 1997 Decision (03-97-598)

The record shows that the instant appeal for 03-97-598 was settled

in March 2000 by the parties. Therefore, the instant appeal from the

October 6, 1997 decision is DISMISSED.

CONCLUSION

The agency's decision dismissing, from 04-96-545, 05-96-549, and

06-96-552, claim 1, the basis of retaliation from claim 2, and claims

3 - 6 is AFFIRMED. The agency's decision dismissing, from 04-96-545,

05-96-549, and 06-96-552, the bases of race, color, sex, and age

discrimination from claim 2 is REVERSED and we REMAND this portion of

claim 2 to the agency for further processing in accordance with this

decision and applicable regulations.

The appeal from the agency's decision in 03-97-598 is DISMISSED.

ORDER (E1199)

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 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 (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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 (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:

April 6, 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 Equal Employment Assistant

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.