01A30637_r
12-03-2003
Saeed U. Din, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Saeed U. Din v. Department of the Navy
01A30637
December 3, 2003
.
Saeed U. Din,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A30637
Agency Nos. DON-01-69217-004, DON-02-00024-005,
DON-02-47039-001, DON-02-67597-003
DECISION
Complainant filed a formal EEO complaint dated March 7, 2001, wherein he
claimed that the agency discriminated against him on the bases of his
religion (Islam), national origin (Pakistan), and in reprisal for his
previous EEO activity under Title VII when his applications for employment
through an appointment under �Schedule A� were not given due consideration
with respect to vacancy announcement numbers: (1) CAP/OCR/0560/00/009LTM;
(2) CAP/OCR/0343/00/015/LTM; (3) CAP/00B/0547/TF; and (4) HRSCC-00-0520.
On April 23, 2001, the agency accepted the complaint for investigation.
On July 13, 2001, the agency advised complainant that the acceptance
letter was rescinded because the formal complaint had been accepted
by the wrong agency organization. Complainant was advised that the
agency would attempt to identify the activities that were responsible
for the relevant nonselections. Subsequently, complainant amended
his complaint to include four additional vacancy announcements:
CAP/OCR/301/00/010/LTM; CAP/OCR/0344/00/016/LTM; CAP/OCR//0561/00/017/LTM;
and CAP/OCR/0029/00/067/LTM. Complainant claimed that the agency had
failed to consider him for appointment under �Schedule B�.
On January 11, 2002, the agency accepted for investigation in Agency
No. DON-01-69217-004 the claims involving positions that had been filled.
The agency dismissed on the grounds of failure to state a claim those
claims addressing vacancy announcements that did not result in a
filled position or which did not result in any identified positions.
Subsequently, complainant stated in a letter to the agency that there
were several positions or vacancies in addition to those previously
raised for which he might have been qualified and referred.
By letter dated March 7, 2002, the agency's Naval Sea Systems Command
activity accepted for investigation a claim involving one vacancy
announcement number, CAP/00B/0547/TF, a nonselection for a Budget
Analyst, GS-560-7/9/11 position. This complaint was assigned case
number DON-02-00024-005.
On April 26, 2002, complainant filed a formal complaint with the Chief of
Naval Operations activity wherein he claimed that he had been subjected
to consistent and systematic discrimination on the afore stated bases.
This complaint was assigned case number DON-02-47039-001.
On June 1, 2002, complainant filed a formal complaint with the
Washington Navy Yard activity wherein he claimed discrimination on the
afore stated bases with regard to not being referred or interviewed
for numerous positions for which he had applied through the agency's
computerized database RESUMIX. This complainant was assigned case
number DON-02-67597-003.
In an undated decision, the agency issued a final action wherein it
consolidated the complaints and dismissed all of them pursuant to 29
C.F.R. � 1614.107(a)(9) on the grounds of misuse of the EEO process.
The agency stated that it had identified at least 26 separate hiring
actions within nine separate activities that fall within the complaints.
The agency stated that the relevant actions involved decisions to fill
or not fill a position, or to cancel an action. The agency determined
that complainant's claims lack specificity. The agency noted that
complainant vaguely claimed that he was being denied due and proper
consideration for employment and that he was the victim of a conspiracy.
The agency stated that complainant claimed in very broad and unclear terms
that the agency's use of the RESUMIX computerized application process
has resulted in discrimination against him. The agency noted that
its computer job application database does not maintain data on a job
applicant's religion, national origin, or prior EEO complaint activity
and therefore an activity seeking a list of qualified applicants would
be unable to utilize the RESUMIX system to eliminate applicants based
on these criteria. In reaching its decision that further processing of
the complaints would overburden the EEO complaints process, the agency
noted that complainant objected to excluding any hiring action that did
not result in a filled position and that he also raised the specter of
additional, unspecified complaints about additional vacancies for which
he may have been qualified. The agency stated that it ran a computer
query on October 22, 2001, to identify potential hiring actions and
that resulted in the 26 identified individual actions. According to
the agency, in order to identify all of the hiring actions for which
complainant may have been qualified and referred, it would have to run
a computer query each day and this would represent an unduly burdensome
requirement upon its personnel system and EEO resources.
On appeal, complainant argues that he has not misused the EEO process,
but rather the agency did not fulfill its responsibility to notify
him as to how his applications had been rated, whether he had been
referred for vacancies, and it failed to inform him of his nonselections.
Complainant requests an investigation of at least the 26 hiring actions
identified by the agency.
In response, the agency asserts that complainant has set forth multiple
vague and identical allegations in numerous complaints. The agency argues
that complainant has not identified specific hiring actions and that there
are positions at issue for which complainant admits he is not qualified.
The agency states that complainant has refused to withdraw complaints
about position announcements which were cancelled and positions which
were not filled. The agency maintains that complainant has overburdened
the EEO process through a pattern of filing meritless complaints against
several agencies and then pursuing appeals.
EEOC Regulations provide for dismissal of complaints that are part of a
�clear pattern of misuse of the EEO process for a purpose other than the
prevention and elimination of employment discrimination.� 29 C.F.R. �
1614.107(a)(9). A clear pattern of misuse of the EEO process requires:
Evidence of multiple complaint filings; and
Allegations that are similar or identical, lack specificity or involve
matters previously resolved; or
Evidence of circumventing other administrative processes, retaliating
against the agency's in-house administrative processes or overburdening
the EEO complaint system.
In the instant case, the agency consolidated complainant's four
complaints and dismissed them in their entirety on the grounds of misuse
of the EEO process.<1> The agency noted that complainant's claims lack
specificity and that they constituted an unduly burdensome requirement
on its personnel system and its EEO resources. We find that the agency
has not established that the matters at issue reflect a misuse of the
EEO process. Although the agency claims that complainant's claims lack
specificity, the agency nonetheless was able to identify from the vacancy
announcements cited by complainant, 26 hiring actions within nine of
its activities. Complainant's reference to systematic discrimination
against him appears vague to the agency, but we find that the claim of
systematic discrimination is not particularly unclear in light of the fact
that complainant consistently states that the discrimination against him
is reflected in the agency's failure to consider, refer, and hire him
for positions for which he believes he is qualified. We note that the
agency states that its RESUMIX system does not indicate an applicant's
religion, national origin, and prior EEO activity and therefore officials
making selection decisions will not have knowledge of these criteria.
This may be a factor that the agency can utilize in addressing the merits
of these complaints, but we do not find this factor to be sufficient to
support a dismissal for misuse of the EEO process.
As for the agency's concern that its personnel office and EEO system
will be overwhelmed by these complaints, we find that the agency has
not made a persuasive argument. Complainant indicates on appeal that
it will be sufficient if the agency conducts an investigation of the 26
identified incidents. Complainant will not be able to add new claims
to an accepted complaint unless an amendment is proper pursuant to 29
C.F.R. � 1614.106(d). We also are not persuaded by the agency's position
that complainant is misusing the EEO process by alleging discrimination
with regard to positions that were not filled and vacancy announcements
that were cancelled. It is conceivable that discriminatory motives can
be involved when the decision is made against filling a position or to
cancel a vacancy announcement.
The Commission wishes to inform complainant, however, that an agency
is generally not obligated to identify specific positions for which
complainant is claiming discriminatory non-selection. Any failure
in the future by complainant to identify specific positions for
which he was allegedly discriminatorily not selected may possibly be
appropriately dismissed for failure to state a claim pursuant to 29
C.F.R. � 1614.107(a)(1).
Accordingly, the agency's dismissal of the consolidated complaint on
the grounds of misuse of the EEO process was improper and is REVERSED.
The consolidated complaint is REMANDED to the agency for further
processing in accordance with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 a
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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 3, 2003
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The agency explicitly states in its decision and on appeal that the
only grounds for dismissal of any of the claims in the consolidated
complaints is misuse of the EEO process.