0120081616
05-05-2008
Warren K. Gladden, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Warren K. Gladden,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120081616
Agency No. 086300005
DECISION
Complainant filed an appeal with this Commission from a final agency
decision, dated January 17, 2008, dismissing his formal complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), 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. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
Complainant was an applicant for two vacancies with the U.S. Census
Bureau. Believing that his non-selections were discriminatory,
complainant contacted the EEO office on October 18, 2007. Informal
efforts to resolve complainant's concerns were unsuccessful. On December
12, 2007, complainant filed the instant formal complaint, on the bases
of race and age.
In its final decision, the agency determined that complainant's complaint
was comprised of two separate claims, identified as follows:
(1) On May 16, 2006, complainant learned that he was not selected for
the position of Program Manager, GS-0340-15, as advertised under Vacancy
Announcement Number DMD-2007-0007; and
(2) Complainant has not been selected for the position of Program manager,
GS-0340-15 as advertised under Vacancy Announcement Numbers DMD-2007-0010
and DMD-2007-0013.
The agency dismissed claim (1) on the grounds of untimely EEO Counselor
contact. The agency dismissed claim (2) for failure to state a claim.
According to the agency, no selection had been made and so complainant
was not aggrieved.
On appeal, complainant asserts that Claim (1) was not part of his
formal complaint, and that he noted the vacancy "as supporting evidence
to explain the discriminatory treatment I received in response to my
application for the DMD-2007-0010/0013 position. Thus, I have no issue
with their dismissal of 'Claim 1' . . . ."
Regarding claim (2), the complainant argues that a selection has
been made for the position, and was made prior to the filing of his
formal complaint. According to complainant, on August 30, 2007, he was
notified by a Human Resources (HR) official that he was not referred to
the selecting official. Thereafter, complainant contacted the EEO office.
On November 29, 2007, complainant states he was issued his Notice of Right
to File Individual Complaint. Complainant asserts that on December 7,
2007, the HR official informed him that a selection had been made.
Thereafter, on December 12, 2007, complainant contends he filed his
formal complaint which referenced the December 7, 2007 non-selection.
Because complainant has clearly stated on appeal that he does not
challenge the agency's dismissal of claim (1), the Commission shall not
address the matter.
As noted above, claim (2) was dismissed for failure to state
a claim. The regulation set forth at 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).
The agency found that because a selection for the vacancy was never
made, complainant failed to establish a personal loss or harm to a
term, condition or privilege of his employment. However, on appeal,
complainant has provided an e-mail, dated December 7, 2007, from an HR
employee stating: "Mr. Gladden, this message is to notify you that a
selection for the Program Manager position advertised under announcements
DMD-2007-0010/0013 has been made." The agency does not challenge the
complainant's contention that a selection was made. Therefore, we find
that the agency improperly dismissed claim (2) for failure to state a
claim.
The agency's decision to is REVERSED. The complaint (comprised solely
of the matter identified in claim (2)) is REMANDED to the agency for
further processing in accordance with the ORDER below.
ORDER (E0408)
The agency is ordered to process the remanded claim in accordance with
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 (K0408)
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 (R0408)
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
May 5, 2008
__________________
Date
2
0120081616
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120081616