Ronnie Dann, Complainant,v.William M. Daley, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionNov 30, 1999
01995387 (E.E.O.C. Nov. 30, 1999)

01995387

11-30-1999

Ronnie Dann, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.


Ronnie Dann, )

Complainant, )

)

v. ) Appeal No. 01995387

) Agency No. 99-63-0374

William M. Daley, )

Secretary, )

Department of Commerce, )

Agency. )

____________________________________)

DECISION

Complainant filed the instant appeal from the agency's decision dated May

25, 1999 dismissing complainant's complaint (claiming termination) on the

grounds that complainant failed to timely contact an EEO Counselor.<1>

The agency also dismissed the basis of retaliation for failing to state

a claim.

EEO Counselor Contact

The agency found that complainant claimed that complainant was

discriminated against on the bases of race, age, and in retaliation for

complaining about a rat infestation in the office when complainant was

forced to retire because of 18 separately listed incidents. The agency

found that complainant initially contacted an EEO Counselor on February

19, 1999, but that the most recent incident (performance rating)

occurred more than 45 days prior to the initial EEO Counselor contact,

in November 1998.

The Commission finds that the agency did not consider the date

complainant retired from the agency. Complainant is apparently claiming

that he was constructively discharged from the agency. Furthermore,

complainant may simply be asserting that the 18 incidents are merely

evidence in support of one claim that he was constructively discharged.

Alternatively, complainant may be attempting to pursue some or all of the

incidents as separate claims of discrimination. On appeal, complainant

argues that he submitted an application for the position of Research

Psychologist on August 15, 1998, but that he has not been notified if a

selection has yet been made. Therefore, if complainant is pursuing this

particular nonselection claim, then this nonselection claim may be timely.

The Commission shall remand the complaint so that the agency can meet

with complainant to clarify: (1) if complainant is claiming that he

was constructively discharged; (2) if the incidents cited by the agency

in its decision are separate claims or are merely evidence in support

of one claim that complainant was constructively discharged; and (3)

if complainant is attempting to raise an independent nonselection claim

regarding his application of August 15, 1998 for the position of Research

Psychologist. If complainant is pursuing the constructive discharge claim

and the nonselection claim regarding his application on August 15, 1998,

then the agency should supplement the record with evidence showing the

effective date of complainant's retirement and with evidence showing the

date complainant should have reasonably suspected complainant was not

selected for the position complainant applied for on August 15, 1998.

The agency shall reconsider whether the complaint needs to be redefined

and whether such a complaint was timely raised with an EEO Counselor.

Failure to State a Claim

The Commission finds that complainant is claiming that he was retaliated

against for protesting the rat infestation and for complaining to

the Regional Director about race and age discrimination. The portion

of complainant's claim of retaliation that is based on complainant's

protesting of the rat infestation was properly dismissed for failing to

state a claim pursuant to 64 Fed. Reg. 37,644, 37656 (to be codified as

and hereinafter cited as 29 C.F.R. �1614.107(a)(1)). Such an activity

does not involve opposition to practices made unlawful by statutes

enforced by the Commission and does not involve participation in any

stage of administrative or judicial proceedings under such statutes.

Therefore, such an activity is not protected under �1614.101(b).

Complainant's claim of retaliation based on complainant's opposition to

race and age discrimination, however, is protected under �1614.101(b),

and was therefore improperly dismissed for failure to state a claim.

The agency's decision dismissing the portion of the complaint claiming

that complainant was retaliated against for protesting the rat infestation

in the office is AFFIRMED. The agency's decision dismissing the remainder

of the complaint is VACATED and we REMAND the remainder of the complaint

to the agency for further processing in accordance with this decision

and applicable regulations.

ORDER

The agency shall contact complainant to clarify the complaint. The agency

shall clarify:

If complainant is alleging that he was constructively discharged.

If the incidents cited by the agency in its decision are separate claims

or are merely evidence in support of one claim that complainant was

constructively discharged.

If complainant is attempting to raise an independent nonselection

claim regarding his application on August 15, 1998 for the position of

Research Psychologist.

If complainant is pursuing the constructive discharge claim and the

nonselection claim regarding complainant's application on August 15, 1998,

then the agency should supplement the record with evidence showing the

effective date of complainant's retirement and with evidence showing the

date complainant should have reasonably suspected that he was not selected

for the position he applied for on August 15, 1998. The agency shall

reconsider whether the complaint needs to be redefined and whether the

matters raised in the complaint were timely raised with an EEO Counselor.

Within 90 days of the date this decision becomes final, the agency shall

issue a letter to complainant accepting the complaint for investigation

or issue a new decision dismissing the complaint. A copy of the letter

accepting the complaint or a copy of the decision dismissing the complaint

must be sent to the Compliance Officer as referenced herein.

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).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision 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 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.

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 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 (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 30, 1999

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 Assistant1On 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.