01984560
05-26-2000
Virgilio C. Thomas, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Virgilio C. Thomas v. Department of the Navy
01984560
May 26, 2000
Virgilio C. Thomas, )
Complainant, )
)
v. ) Appeal No. 01984560
) Agency No. 98-61338-001
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated May 1, 1998, dismissing his complaint of
unlawful employment 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 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1> In his complaint, complainant alleged that
he was subjected to discrimination on the bases of sex (male) and age
(date of birth August 31, 1942) when:
On October 18, 1997, when complainant was a customer in the "Exchange,"
a cashier was rude to complainant;
In February 1997, complainant was not selected for unspecified
positions; and
Complainant's application of December 2, 1996, resulted in
non-selections for unspecified supervisory positions.
The agency dismissed the complaint for failure to state a claim.
Specifically, the agency found that claim (1) did not involve
complainant's employment. With regard to claims (2) and (3), the agency
found that complainant failed to allege harm with adequate specificity for
his claims to be processed. The agency also dismissed claims (2) and (3)
for failure to cooperate, because complainant failed to respond to a May
23, 1998 letter requesting additional information concerning the claims.
On appeal, complainant submitted a certified receipt card showing that the
agency Exchange received his response to the request for information on
April 7, 1998. In this response, complainant noted that he applied for
positions in the Exchange since 1983, including positions for cashier,
payroll, security, and supervisor. However, complainant does not explain
when he applied for the positions, how many jobs he applied for, or which
specific openings he was applying for. Complainant did explain that on
December 2, 1996, he applied for a supervisory position advertised in
the newspaper on November 24, 1996. He resubmitted the same application
directly to Exchange personnel in February 1997.
The record includes the request for further information, dated March 23,
1998. Therein, the agency requested specificity regarding complainant's
claims of non-selection. The record reveals that complainant received
the letter on March 25, 1998.
The record also includes a copy of the Counselor's Report. The
Counselor's Report details complainant's attempts to apply for the
supervisory position advertised in the newspaper on November 24, 1996.
The report states that no other applications were found from complainant.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1))
provides, in relevant part, that an agency shall dismiss a complaint
that fails to state a claim. An agency shall accept a complaint from
any aggrieved employee or applicant for employment who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or disabling condition.
29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
In the present case, the Commission agrees with the agency with regard to
claim (1). Complainant failed to allege any harm to a term, condition,
or privilege of employment. His status as a customer is outside the
employment context.
The dismissal of claim (2) for failure to state a claim also was proper.
Where complainant has failed to apply for the position, and complainant
proffered no further evidence of how he was harmed, his non-selection for
the position fails to state a claim. See Koch v. Securities and Exchange
Commission, EEOC Request No. 05980240 (date). In the present case,
complainant has presented no proof that he applied for any positions
other than the supervisory position advertised in the newspaper, and
the record does not support any such applications. He also has failed
to provide the specific date of the applications, or the circumstances
surrounding his learning of the openings.<2> Accordingly, claim (2)
fails to state a claim.
With regard to claim (3), the Commission finds that complainant included
adequate information. Complainant clearly alleged that in December 1996,
he applied for a position advertised in the newspaper on November 26,
1996. He resubmitted his application in February 1997, but was never
selected for the position. This matter states a claim.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(7)) provides for
the dismissal of a complaint where the agency has provided the complainant
with a written request to provide relevant information or otherwise
proceed with the complaint, and the complainant has failed to respond to
the request within 15 days of its receipt or the complainant's response
does not address the agency's request, provided that the request included
a notice of the proposed dismissal. The regulation further provides
that, instead of dismissing for failure to cooperate, the complaint may
be adjudicated if sufficient information for that purpose is available.
Under the circumstances in this case, we find that the agency's dismissal
of claim (3) for failure to cooperate was improper. In the present case,
complainant responded to the agency's request within fifteen days, and
provided evidence of the position he applied for, and when he applied
(twice). Further, the Counselor's Report provides enough information
to determine the acceptability of complainant being denied the position
advertised in the newspaper on November 24, 1996. The Commission has
held that as a general rule, an agency should not dismiss a complaint
when it has sufficient information on which to base an adjudication.
See Ross v. United States Postal Service, EEOC Request No. 05900693
(August 17, 1990); Brinson v. United States Postal Service, EEOC Request
No. 05900193 (April 12, 1990). Therefore, the dismissal of claim (3)
for failure to cooperate must be reversed.
CONCLUSION
The agency's dismissal of claim (1) and (2) is AFFIRMED. The dismissal of
claim (3) is REVERSED, and the claim is REMANDED for further processing.
ORDER
The agency is ORDERED to process the remanded claim, as defined above,
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 claim
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 (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 (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T1199)
This decision affirms the agency's final decision/action 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 WITHIN NINETY (90) CALENDAR
DAYS from the date that you receive this decision 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. 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 (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:
May 26, 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
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.
2Since we are affirming the agency's dismissal of claim (2) for failure
to state a claim, we will not address the agency's alternative grounds
for dismissal of claim (2) -- failure to cooperate.