01984387
11-24-1999
Rudolph A. Greene, Sr., Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Rudolph A. Greene, Sr. v. Social Security Administration
01984387
November 24, 1999
Rudolph A. Greene, Sr., )
Complainant, )
) Appeal Nos. 01984387
v. ) 01984388
) 01984389
Kenneth S. Apfel, ) 01984390
Commissioner, ) Agency Nos. 97-0066-SSA
Social Security Administration, ) 97-0130-SSA
Agency. ) 94-0118-SSA
) 95-0091-SSA
DECISION
Introduction
Complainant timely initiated appeals from four separate final agency
decisions, each issued on April 7, 1998, concerning his equal employment
opportunity (EEO) complaints of unlawful retaliation and discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e, et seq., and the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. �621, et seq., arising from his
non-selection for various positions at the agency's Baltimore, Maryland
Headquarters Office, where he was employed during the relevant time.<1>
These four appeals are hereby consolidated and accepted in accordance
with EEOC Order No. 960.001.<2> For the following reasons, the agency's
decisions in appeal nos. 01984389 and 01984390 are AFFIRMED, and the
agency's decisions in appeal nos. 01984387 and 01984388 are VACATED
and REMANDED to be held in abeyance pending disposition of Dunbar, et
al. v. Social Security Administration, EEOC Hearing Nos. 120-96-5334X,
120-96-5253X, 120-96-5335X.
Issues Presented
The issue on appeal in each of these four appeals is whether complainant
has proven by a preponderance of the evidence that he was subjected
to retaliation or discrimination, on the bases identified below, with
respect to his non-selection for any of the positions at issue.
Background
Appeal No. 01984387
In appeal no. 01984387 (agency no. 97-0066-SSA), complainant alleges
that he was subjected to retaliation based on prior EEO activity and
discrimination based on race (Black), sex (male), and age (48), when
he was not selected for the GS-998-8 Supervisory Claims Clerk position
advertised under vacancy announcement 0-1732. Complainant became aware
of his non-selection on or about October 13, 1996.
The record reveals that complainant, a GS-6 Accounts Investigations
Clerk who serves as a Lead Claims Clerk, has been employed by the
agency since 1975. He applied for the referenced Supervisory Claims
Clerk position, for which there were thirteen openings, but was not
selected. Believing he was a victim of retaliation and discrimination
as referenced above, complainant sought EEO counseling, and subsequently
filed a complaint on November 15, 1996. Complainant asserted that his
non-selection constituted disparate treatment against him individually,
and also reflected a pattern and practice of discrimination against
Black males at the agency. Complainant stated that he has only been
promoted twice during his employment with the agency, and that one such
promotion was the result of an unfair labor practice grievance which
was settled. Record of Investigation (ROI) 97-0066/97-0130 at Exhibit 5.
Complainant noted that he has applied for thirteen positions for which
he was not selected, nine of which were supervisory positions. Id.
In its FAD (FAD #1),<3> the agency found that complainant had establish a
prima facie case of retaliation, but had failed to establish a prima facie
case of race, sex or age discrimination because he failed to demonstrate
that similarly situated employees outside his protected classes were
treated more favorably.<4> Nevertheless, FAD #1 concluded that even
assuming complainant had demonstrated a prima facie case on all his
alleged bases, complainant failed to demonstrate by a preponderance of
the evidence that the agency's proffered reason for his non-selection
was pretextual, and that the real reason was retaliation and/or
discrimination.
Appeal No. 01984388
In appeal no. 01984388 (agency no. 97-0130-SSA), complainant alleges
he was subjected to retaliation based on prior EEO activity and
discrimination based on race (Black) and sex (male), when on or
about November 10, 1996, he was not selected for the position of Mail
Supervisor, GS-305-08, posted under vacancy announcement 0-1739 on or
about November 10, 1996. The record reveals that complainant applied for
the above-referenced position but was not placed on the best qualified
list (BQL) and was not interviewed for the position. Believing he
was a victim of retaliation and discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on December 31, 1996.
In its FAD (FAD #2), the agency found that complainant established prima
facie cases of race and sex discrimination by demonstrating that he was
qualified for the position at issue but was not selected in favor of a
person outside his protected classes. FAD #2 also found that complainant
established a prima facie case of retaliation by demonstrating that he
engaged in prior EEO activity, the selecting official (SO) was aware
of complainant's prior EEO activity, and complainant's non-selection
constituted an adverse action. However, FAD #2 concluded that complainant
failed to demonstrate by a preponderance of the evidence that the agency's
proffered reason for his non-selection was pretextual, and that the real
reason for his non-selection was retaliation and/or discrimination.
Appeal No. 01984389
In appeal no. 01984389 (agency no. 0118-94-SSA), complainant alleges
he was subjected to retaliation based on prior EEO activity and
discrimination based on race (Black) and sex (male) when he was not
selected for the GS-05/06/07 Claims Technician position (Lead Claims
Technician) which was advertised under vacancy announcement 0-1638.
Believing he was a victim of retaliation and discrimination, complainant
sought EEO counseling and, subsequently, filed a formal complaint on
November 22, 1993.
In its FAD (FAD #3), the agency found that complainant established prima
facie cases of race and sex discrimination by demonstrating that he
was qualified for the position at issue but was not selected in favor of
persons outside his protected classes. FAD #3 also found that complainant
established a prima facie case of retaliation by demonstrating that the
SO was aware of complainant's "prior EEO activity," notwithstanding that
the FAD noted that what complainant alleged to be prior EEO activity
was actually an unfair labor practice charge.<5>
Nonetheless, FAD #3 concluded that complainant failed to demonstrate
by a preponderance of the evidence that the agency's proffered reason
for his non-selection was pretextual, and that the real reason for his
non-selection was retaliation and/or discrimination. FAD #3 credited
testimony by the selecting official (SO) that although complainant was
on the BQL list, her selection was based on which candidates on the BQL
list received a "highly recommended" assessment from their supervisor.
The Record of Investigation (ROI 0118-94) reveals that complainant's
two then-current supervisors (both Black, female) recommended him, but
did not rate him as "highly recommended." One supervisor advised the SO
that complainant was "overly aggressive and does not work well with his
peers," that complainant's behavior toward his mentors had resulted in
his having three different supervisors in a thirty-day period, that he
displayed "rudeness and [a] hostile attitude toward procedural changes and
automation," and that he had not successfully adjusted from his former
to then-current position. ROI 0118-94 Exhibits 5 and 6. Complainant's
other supervisor attested that she recommended complainant because of
his self-confidence and ambition, but did not "highly recommend" him
because he was "overly aggressive" and caused problems with his peers.
ROI 0118-94 Exhibit 7.
Appeal No. 01984390
In appeal no. 01984390 (agency no. 0091-95-SSA), complainant alleges he
was subjected to retaliation for prior EEO activity and discrimination
based on race (Black), sex (male), and age (46), when he was not selected
for the GS-8 Supervisory Claims Clerk position which was advertised
under vacancy announcement 0-1680. Complainant became aware of his
non-selection on September 28, 1994. Believing he was a victim of
retaliation and discrimination, complainant sought EEO counseling and,
subsequently, filed a formal complaint on November 17, 1994.
In its FAD (FAD #4), the agency did not expressly address whether or
not complainant had established a prima facie case of retaliation or
discrimination, but concluded that complainant had failed to demonstrate
that management's proffered explanation for his non-selection was
a pretext for retaliation and/or discrimination. Specifically,
FAD #4 found that while complainant was qualified for the position,
management credibly contended that he was not selected because: (1)
the three selectees (Black, female, prior EEO activity not identified)
were more highly qualified as determined by the Knowledge, Skills, and
Abilities for the position; (2) two of the selectees had an "excellent"
performance rating, and the third had an "outstanding" rating, whereas
complainant had a "satisfactory" rating; (3) the selectees each held
GS-7 positions and therefore required less training for the instant GS-8
position than complainant, who was a GS-6; and (4) the selectees had 4
months, 44 months, and 55 months, respectively, of prior supervisory
experience, whereas complainant had 2 weeks, as reflected on his SSA
Employee Qualifications Summary form. Further, the FAD noted that of the
14 Supervisory Claims Clerks in the unit at issue, their ages were 41,
42, 43, 45, 48, 52, 52, 53, 54, 56, 58, and 64. Complainant's age at
the time of his non-selection was 46, and the selectees were ages 45,
52, and 52, respectively. ROI 0091-95 Exhibit 11.
Contentions on Appeal
Complainant has only submitted specific contentions on appeal with respect
to appeal no. 01984388 (agency no. 97-0130-SSA). He asserts, inter alia,
that although he is a putative member of a pending class action against
the agency, he has elected to pursue his claims individually rather than
as a member of the class. In aid of his pattern and practice theory,
complainant has submitted on appeal an excerpt from an appellate brief
in support of class certification previously filed by class counsel,
which refers to complainant's experience with denied promotions as
similar to that of the class agents. See Complainant's Brief, Exhibit
B-2 at 7. The agency requests that we affirm its FADs.
Analysis and Findings
Appeal Nos. 01984387 and 01984388
Complainant asserts on appeal that he is pursuing his individual
complaints rather than proceeding as a member of the pending class
action in which he is a putative member. However, complainant cannot
do so with respect to the claims at issue in appeal nos. 01984387
(agency no. 97-0066-SSA) (FAD #1) and 01984388 (agency no. 97-0130-SSA)
(FAD #2).
When a complainant who is a potential member of a class action files an
individual complaint, at or around the same time that a class complaint
is filed, the agency must determine whether the issue in the individual
complaint is identical to that which is presented in the class complaint.
Lehmkuhl v. United States Postal Service, EEOC Request No. 05910684
(November 21, 1991); see also Hyza v. Social Security Administration,
EEOC Appeal No. 01971607 (July 8, 1997); DuBois v. Social Security
Administration, EEOC Appeal No. 01965222 (April 23, 1997). If the
issues are found to be identical, then the agency should issue a
decision notifying the complainant that his or her complaint will be
held in abeyance pending disposition of the class action, Dunbar, et
al. v. Social Security Administration, EEOC Hearing Nos. 120-96-5334X,
120-96-5253X, 120-96-5335X. This procedure is necessary to avoid
duplication of administrative resources. If, however, the issues are
not found to be identical, then the agency should continue to process
the individual complaint.
As complainant notes, there is a pending class complaint against the
agency in which he is a potential class member. The class complaint
was filed on November 9, 1995, and an EEOC AJ subsequently certified
the class, defined as follows:
All African-American males employed at SSA's Headquarters Office in
Baltimore, Maryland, who, on or after June 23, 1995, were not selected or
promoted, or were otherwise subjected to disparate treatment in regard
to performance appraisals, awards and bonuses, and disciplinary action
as part of the agency's alleged subjective personnel system which allows
bias and stereotypes to be used to deny African-American males employment
opportunities.
Dunbar, et al. v. Social Security Administration, EEOC Appeal
No. 01975435 (July 8, 1998) (upholding class certification), request
for reconsideration denied, EEOC Request No. 05981075 (January 22, 1999).
At issue in appeal nos. 01984387 and 01984388 are complainant's
challenges to a pattern and practice of discriminatory non-selection of
African-American males occurring during the same time frame covered by the
class complaint. This renders these two individual complaints and the
class complaint "identical" for purposes of the foregoing requirement,
notwithstanding that complainant's individual claims include additional
bases (01984387 additionally includes retaliation and age, and 01984388
includes retaliation).
While the record does not include a copy of the class complaint,
this Commission's appellate decision regarding class certification
contains the class definition, quoted above. In light of the certified
class complaint, now pending, we find that the matters raised in the
complaints at issue in appeal nos. 01984387 (agency no. 97-0066-SSA)
(FAD #1) and 01984388 (agency no. 97-0130-SSA) (FAD #2) are identical to
those raised in the class complaint. Because the same non-selection is
the focus of the dispute in both complaints, we find that complainant's
individual complaints must be held in abeyance pending adjudication of
the class complaint.
Accordingly, we VACATE FADs ##1 and 2 (agency case nos. 97-0066-SSA and
97-0130-SSA), and REMAND those two cases to be held in abeyance by the
agency pending adjudication of the pending class complaint, Dunbar, et
al. v. Social Security Administration, EEOC Hearing Nos. 120-96-5334X,
120-96-5253X, 120-96-5335X. Upon adjudication of the class complaint,
the agency is to proceed as specifically provided in the order which
appears at the end of this decision.
Appeal Nos. 01984389 and 01984390
FADs ##3 and 4 (agency nos. 0118-94-SSA and 95-0091-SSA) address claims
which are not within the definition of the certified class, since the
non-selections at issue in those two cases arose prior to June 23, 1995.
Accordingly, we will address the merits of complainant's respective
appeals from the FADs in those two cases (FADs ##3 and 4).
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979),
Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981),
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases), and the factual record
as set forth above, the Commission agrees with the agency's analysis in
both appeals. The Commission finds that assuming complainant established
prima facie cases of retaliation and discrimination in both cases, he
did not present evidence sufficient to prove that more likely than not,
the agency's articulated reasons for its actions were a pretext for
retaliation or discrimination.
In reaching this conclusion, we note that the foregoing review of the
factual record for each appeal demonstrates that complainant has not
disproved management's proffered legitimate reasons for his non-selection
in either case. Moreover, to the extent complainant contends his
experience as a Lead Claims Clerk and a union vice-president, as well
as his educational background and outside activities, rendered him more
qualified than those selected, complainant has not demonstrated with
respect to either non-selection that his qualifications were plainly
superior to those of the selectees. See Vanek v. Department of the
Treasury, EEOC Request No. 05940906 (January 16, 1997); Bauer v. Bailor,
647 F.2d 1037, 1048 (10th Cir. 1981). Both court and Commission precedent
have consistently held that even where there are two equally desirable
candidates competing for the same position, the selecting official may
exercise his prerogative in choosing between the candidates, and absent
discrimination, a trier of fact should not substitute his judgment for
the legitimate exercise of managerial discretion. See Shapiro v. Social
Security Administration, EEOC Request No. 05960403 (December 6, 1996).
Further, while complainant alleges that one of the selecting officials
in agency case no. 95-0091 (FAD#4), the Division Director, Division of
Earnings and Adjustments, made a statement indicating retaliatory intent,
we find that the evidence is insufficient to prove retaliation by a
preponderance of the evidence in light of the official's explanation
for the statement, and the evidence supporting the proffered legitimate
reasons for complainant's non-selection. Specifically, complainant
contends that in 1992 the Division Director told complainant that he would
never place complainant in a management position because complainant was
like a "grenade with a loose pin." The Division Director acknowledges
that he made this remark, but denied that it indicated any retaliatory
animus. The Division Director explained that he had been asked by the
Director of the Office of Central Records Operations (OCRO) to have a
frank discussion with complainant about his behavior in order to help him
in his career path, and in this context made the remark, when discussing
the ways in which he believed complainant's behavior to date had been
unsatisfactory to permit advancement. ROI 0091-95 Exhibit 3. Moreover,
as reviewed above, the record reveals that the three selectees held a
higher grade (GS-7) than complainant (GS-6), had higher performance
ratings, and had demonstrably more supervisory experience. To the
extent complainant contends that he should have been selected anyway
and trained while holding the position or while placed on a detail to
fill the position, we cannot find that management's failure to follow
such a procedure is evidence of discriminatory or retaliatory motive,
given the superior qualifications of the selectees.
Accordingly, complainant has not proven by a preponderance of the evidence
that the proffered reasons for his non-selection are pretextual and that
the real reason was discrimination or retaliation.
Conclusion
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we VACATE and REMAND FADs
##1 and 2 (agency case nos. 97-0066-SSA and 97-0130-SSA), and AFFIRM FADs
##3 and 4 (agency case nos. 0118-94-SSA and 95-0091-SSA), in accordance
with the following order.
ORDER (E1092)
The agency is ORDERED to HOLD IN ABEYANCE the remanded claims, agency
case nos. 97-0066-SSA and 97-0130-SSA. 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 take the following actions with respect to these cases:
(1) If the class complaint, Dunbar, et al. v. Social Security
Administration, EEOC Hearing Nos. 120-96-5334X, 120-96-5253X,
120-96-5335X, is adjudicated on the merits in favor of the class
complainants, pursuant to a class definition which continues to encompass
complainant's non-selections at issue in 97-0066-SSA and 97-0130-SSA,
and complainant is a party to the disposition such that complainant's
two individual complaints are subsumed within the class complaint
disposition, the agency may dismiss the individual complaints from its
docket accordingly;
(2) If the class complaint, Dunbar, et al. v. Social Security
Administration, EEOC Hearing Nos. 120-96-5334X, 120-96-5253X,
120-96-5335X, is decertified, or alternatively if there is a disposition
on the merits in favor of the agency, then the agency must within
thirty days re-issue its FADs in 97-0066-SSA and 97-0130-SSA,
advising complainant of his appellate rights in accordance with 29
C.F.R. �1614.110, as follows:
(a) In the event the class complaint is decertified, the notification
of appellate rights in the re-issued FADs in 97-0066-SSA and 97-0130-SSA
must advise complainant that he is entitled to appeal the FADs within the
specified time period, with respect to all bases raised in the complaints;
and
(b) In the event the class complaint is adjudicated on the merits in
favor of the agency, then the notification of appellate rights in the
re-issued FADs in 97-0066-SSA and 97-0130-SSA must advise complainant
that he is only permitted to appeal the FADs with respect to those
claims not adjudicated in the class action, i.e. non-selection based
on retaliation and age discrimination in 97-0066-SSA and non-selection
based on retaliation in 97-0130-SSA.
A copy of the agency's letter of acknowledgment to complainant and copies
of the re-issued FADs, if any, with 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).
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 24, 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:
_________________________ ___________________
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.
2Complainant has additionally filed one other appeal (EEOC appeal
no. 01985445), which remains pending before this Commission.
3In each of the four complaints at issue, complainant initially requested
a hearing before an Equal Employment Opportunity Commission (EEOC)
Administrative Judge (AJ) upon receiving the Record of Investigation
(ROI), but subsequently rescinded the request, whereupon the agency
issued a FAD.
4Nine of the selectees were older than complainant, and two were Black
males.
5This Commission has long held that filing a labor grievance which does
not raise EEO issues is not considered "protected activity" for purposes
of reprisal analysis under Title VII. Cranson v. Department of Commerce,
EEOC Request No. 05920004 (February 28, 1992). However, the agency does
not dispute with respect to the retaliation claims in any of the instant
appeals that complainant's prior labor grievances involved EEO claims.