01992433
02-24-2000
Rondal E. Morris, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Rondal E. Morris, )
Complainant, )
)
v. ) Appeal No. 01992433
) Agency No. DON-98-62849-001
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
We find that the agency's January 5, 1999 decision dismissing a claim on
the grounds of failure to state a claim and because it raised a proposal
to take a personnel action, is not proper pursuant to the provisions
of 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(1) and (5). <1>
The record shows that Complainant alleged that he had been discriminated
against on the basis of age (7/10/40) when on or about April 20, 1998,
the Naval Aviation Engineering Services Unit (NAESU) violated its
instructions and policies and issued orders to reassign him to Atsugi,
Japan to bring a younger person back to NAESU Detachment North Island.
The agency dismissed this claim on the basis of failure to state a
claim and because it raised a proposal to take a personnel action.
The agency found that the personnel action in question �never occurred�.
The agency further found that Complainant had not been suffered a harm
to the terms, conditions or privileges of his employment.
On appeal, Complainant contends that contrary to the agency's findings, he
was harmed by the agency's actions because he �was forced to leave his job
at NAESU [after 18 years] and transfer to a new position�. In response
to the appeal the agency contends that because the reassignment never
occurred the claim is also moot. The agency further contends that even
if the reassignment had occurred, the Complainant would not have been
harmed because his position required mobility, pursuant to the terms of
a mobility agreement.
A review of the record shows that Complainant claims that he was
discriminated against on the basis of his age when he was reassigned to
Japan. While the agency claims that Complainant was not aggrieved because
the personnel action in question did not take place, Complainant claims
that to prevent its effects he was forced to leave his position after
eighteen years and transfer to another position. In essence, Complainant
claims that he was subject to an involuntary transfer. This is certainly
a claim concerning the terms, conditions and privileges of Complainant's
employment. Accordingly, the agency should have processed this claim
and not dismissed it for failure to state a claim: the only questions
for the agency to consider are whether a Complainant is aggrieved and
whether the complaint alleges employment discrimination on a basis covered
by EEO statutes. If so, then the agency must accept the complaint for
processing, regardless of what it thought of the merits.<2> Odoski v.
Department of Energy, EEOC Appeal No. 01901496 (April 16, 1990).
The Commission notes that the agency has provided several other grounds
for dismissal of Complainant's complaint. In its final decision,
the agency determined that Complainant alleged that a proposed agency
action was discriminatory. We reject this determination. As discussed
above, a fair reading of Complainant's complaint reflects that he claims
that he was subjected to an involuntary transfer, which is a completed
agency action.
On appeal, the agency argues in a cursory fashion that Complainant's
complaint is also moot. We similarly reject this argument. To determine
whether the issues raised in appellant's complaint remain in dispute,
it must be ascertained (1) if it can be said with assurance that there
is no reasonable expectation that the alleged violation will recur, and
(2) if the interim relief or events have completely and irrevocably
eradicated the effects of the alleged violations. See County of Los
Angeles v. Davis, 440 U.S. 625 (1979). When such circumstances exist,
no relief is available and no need for a determination of the rights of
the parties is presented.
Upon our review of the record, we determine that neither prong of the
County of Los Angeles v. Davis test has been met.
Accordingly, the agency's final decision is REVERSED and the complaint
is REMANDED for processing accordance with this decision and applicable
regulations.
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 (M1199)
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). 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
(R1199)
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:
February 24, 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
1 On 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.
2 Therefore, it is not relevant, at this stage of the process whether
Complainant's position required him to move or not, pursuant to the
terms of a mobility agreement. With regard to this argument, we find
that the agency has articulated a reason that goes to the merits of
appellant's complaint, and is irrelevant to the procedural issue of
whether he has stated a justiciable claim. See Ferrazzoli v. USPS,
EEOC Request No. 05910642 (August 15, 1991).