01983075
03-02-1999
Ronald D. Larson, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency
Ronald D. Larson v. Department of the Navy
01983075
March 2, 1999
Ronald D. Larson, )
Appellant, )
) Appeal No. 01983075
v. ) Agency No. DON-97-63139-006
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency )
)
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
his complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section
2000e et seq., and the Age Discrimination in Employment Act of 1967, as
amended, 26 U.S.C. �62 et seq. The appeal is accepted by the Commission
in accordance with the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed
appellant's complaint for failure to state a claim.
BACKGROUND
Appellant filed a complaint of discrimination dated September 8, 1997,
based on age (DOB 2-18-34), sex (male), and reprisal (prior EEO activity),
alleging, among other issues, that appellant's use of the EEO process
was interfered with on June 19, 1997, when the Supervisor, named in the
complaint, prevented the Representative from hand-delivering appellant's
formal complaint to an EEO Officer, told the Representative that he was
authorized to accept the complaint on behalf of the EEO Officer, and
took the complaint to the EEO Officer. (Issue (5), Formal Compliant,
September 8, 1997).
The agency issued a final agency decision, dated March 6, 1998, in which
it dismissed issue (5) for failure to state a claim pursuant to EEOC
Regulation 29 C.F.R. �1614.107(a).
Appellant appealed on March 17, 1998, claiming the agency erred in
dismissing his complaint because he alleged an ongoing pattern of
harassment.
The agency responded on May 22, 1998, that appellant has not sustained
any personal injury or harm as a result of the alleged incident, and
therefore, fails to state a claim.
ANALYSIS AND FINDINGS
The Commission finds that appellant is alleging that the Supervisor's
actions constitute an unlawful interference with the EEO process.
EEOC Regulation 29 C.F.R. �1614.105(g) provides, in pertinent part, that
an EEO Counselor shall not attempt in any way to restrain an aggrieved
person from filing a complaint. Additionally, we note that in Crespo
v. USPS, EEOC Request No. 05920842 (September 17, 1993), the Commission
held that:
The agency has a continuing duty to promote the full realization of
equal employment opportunity in its policies and practices. This duty
extends to every aspect of agency personnel policy and practice in the
employment, advancement, and treatment of employees. Agencies shall,
among other things, insure that managers and supervisors perform in
such a manner as to effectuate continuing affirmative application and
vigorous enforcement of the policy of equal opportunity.
See Torrez v. Social Security administration, EEOC Request No. 05950947
(March 10, 1998), negative comments concerning filing of EEO complaints
made by the agency's Director of the Office of Civil Rights and Equal
Opportunity at a conference could have a potential chilling effect
on employees. Thus, appellant states a claim of interference in the
EEO process.
In this case, the Supervisor, named in the appellant's formal complaint,
prevented appellant's representative from delivering the complaint to
an EEO Officer. The supervisor's conduct, rather than encouraging the
realization of equal employment opportunity in the workplace, could have
a potential chilling effect on the ultimate tool that employee's have to
enforce equal employment opportunity - the filing of an EEO complaint.
For this reason, the Commission finds that the agency improperly dismissed
appellant's complaint.
CONCLUSION
The agency's decision to dismiss issue (5) of appellant's complaint is
REVERSED and REMANDED for investigation.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
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. 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
Mar 2, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations