01A15157_r
08-13-2002
Wendell P. Tyler, Complainant, v. Kay Coles James Director, Office of Personnel Management, Agency.
Wendell P. Tyler v. Office of Personnel Management
01A15157
August 13, 2002
.
Wendell P. Tyler,
Complainant,
v.
Kay Coles James
Director,
Office of Personnel Management,
Agency.
Appeal No. 01A15157
Agency No. 00-31
DECISION
Upon review, the Commission finds that the complaint was improperly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim. Complainant claimed that the Office of Personnel Management
(OPM or agency) discriminated against him on the bases of disability
and in reprisal for prior protected activity when it failed to refer his
name for employment to the Social Security Administration in Champaign,
Illinois since he was last interviewed in 1998.
The agency issued a final decision dismissing the complaint for failure
to state a claim. The agency found that it �has no jurisdiction over who
is hired at the SSA.� The agency also dismissed the basis of reprisal
after finding that there was no evidence that complainant had engaged
in prior EEO activity.
On appeal, complainant contends that the agency and the Social Security
Administration �are in collusion in keeping� his name from being
considered for employment.
We find that the complaint is sufficient to state a claim under our
regulations. The only proper questions in determining whether a claim is
within the purview of the EEO process are (1) whether the complainant
is an aggrieved employee and (2) whether he has alleged employment
discrimination covered by the EEO statutes. An employee is "aggrieved"
if he has suffered direct and personal deprivation at the hands of the
employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133
(March 2, 1990); Odoski v. U.S. Department of Energy, EEOC Appeal
No. 01901496 (April 16, 1990). Here, complainant claims that OPM
refuses to refer his name for employment consideration by the Social
Security Administration. Complainant further claims that the agency has
engaged in this conduct due to his disability and in retaliation for
his prior EEO activity. Complainant's claim is sufficient to render
him an aggrieved employee. Because complainant has alleged that the
adverse action was based on disability and reprisal, he has raised a
claim within the purview of the EEOC regulations.
The Commission recognizes, however, that the Social Security
Administration is an �indispensable party� to the instant action.
See Reyes v. Office of Personnel Management, EEOC Request No. 0500916
(November 15, 1990). Therefore, the Social Security Administration must
join the agency in processing complainant's complaint. Accordingly, the
agency's final decision dismissing the complaint for failure to state a
claim on the basis of disability is REVERSED. The complaint is hereby
REMANDED for further processing in accordance with the Order below.
Moreover, we find that the record reflects that complainant had prior
EEO activity. Accordingly, the agency's decision dismissing the basis
of reprisal is also REVERSED.
ORDER
The agency (OPM) is ordered to contact the Social Security Administration
and jointly process the instant complaint (alleging discrimination
on the bases of disability and reprisal), filed on August 28, 2000.
The agency shall complete this initial contact with the Social Security
Administration and begin joint processing of this case within thirty (30)
calendar days of the date that this decision becomes final. These two
agencies shall process the remanded claims in accordance with 29 C.F.R. �
1614.108, and the investigations of each agency shall be consolidated.
Thereafter, OPM shall issue to complainant a copy of the jointly processed
investigative file and 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, OPM and
the Social Security Administration shall issue a joint final decision
within sixty (60) days of receipt of complainant's request. Evidence of
joint processing of the complaint must be sent to the Compliance Officer
as referenced below, within thirty (30) calendar days of the date that
this decision becomes final.
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
August 13, 2002
__________________
Date