01997254
02-10-2000
William D. Snapp, Complainant, v. Ida L. Castro, Chairwoman, Equal Employment Opportunity Commission, Agency.
William D. Snapp, )
Complainant, )
)
v. ) Appeal No. 01997254
) Agency No. 0-9900045-HQ
Ida L. Castro, )
Chairwoman, )
Equal Employment Opportunity Commission, )
Agency. )
___________________________________________ )
DECISION
On September 25, 1999, complainant filed a timely appeal with this
Commission from a final agency<1> decision (FAD) received by him on August
27, 1999, regarding a 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, as amended, 29 U.S.C. �621 et seq. In his complaint, complainant
alleged that he was subjected to discrimination on the bases of race
and age. The FAD identified the specific issues as follows:
Complainant did not receive a timely performance appraisal for FY 1998;
and
Complainant was orally informed that he would be demoted and removed
as the Regional Attorney of the Atlanta District Office.
The agency dismissed claim (1) of complainant's complaint pursuant to
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified as 29 C.F.R. �
1614.107(a)(1))<2>, for failure to state a claim. In particular, the
agency found that complainant had failed to show how he was aggrieved by
not receiving a timely performance appraisal for FY 1998. The agency
dismissed claim (2) of the complaint for alleging a proposal to take a
personal action, or other preliminary step to taking a personnel action,
is discriminatory, pursuant to Volume 64 Fed. Reg. 37,644, 37,656
(1999)(to be codified as 29 C.F.R. � 1614. 107(a)(5)). Specifically,
the agency determined that the alleged assertions by the agency's General
Counsel that he intended to demote complainant and remove him from his
position as Regional Attorney, constituted merely a proposal to take a
personnel action, which was never formalized. In addition, the FAD found
that complainant's claim that he was forced to accept a position as an
Alternative Dispute Resolution Coordinator (categorized by complainant
as a �constructive demotion�), based on the assertions of the General
Counsel, did not cure the deficiencies of complainant's claim.
On appeal, complainant argues that the agency improperly identified claim
(1) concerning his FY 1998 performance appraisal as a separate claim
of discrimination. Because complainant indicates on appeal that claim
(1) was not offered as a separate claim of discrimination and was solely
intended as background information, we will not discuss further the
agency's dismissal of the claim in its final decision.
Regarding claim (2), complainant argues that the agency's decision was
reached in error. Specifically, complainant argues that the agency
engaged in a series of discriminatory acts, beginning with an October
1998 audit of the Atlanta District Office, and ending with complainant's
constructive demotion to the position of ADR coordinator, as described
in claim (2). Complainant argues that the agency engaged in conduct
that continued to and beyond the time period addressed in claim (2),
which adversely affected the terms and conditions of his employment.
Complainant argues that based on the statements of the General Counsel
that complainant would be removed as Regional Attorney for the agency's
Atlanta District Office, he was forced to accept the GS-14 ADR position.
In response, the agency argues that even assuming that the alleged
discriminatory acts to which complainant alleges he was subjected from
October 1998 through January 27, 1999 occurred, his contact of an EEO
counselor on March 11, 1999 was untimely with regard to these matters.
Specifically, the agency argues that statements made in the declaration
attached to his complaint reflect that complainant suspected that the
agency was subjecting him to discrimination as early as October 1998,
during the audit of the Atlanta District Office. The agency argues that
the only alleged discriminatory acts which occurred within 45 days of his
March 11, 1999 EEO contact were those occurring after January 25, 1999,
i.e., claim (2), regarding his demotion and removal as Regional Attorney.
The agency reiterates its position that claim (2) involved a proposal
to take a personnel action, which was never formalized.
As an initial matter, we note that complainant argues on appeal that
the agency improperly defined the issues in his complaint. Complainant
asserts that his complaint of discrimination involves a series of events
beginning in October 1998 and culminating in the January 1999 event
described in claim (2). Upon review of the record herein, including the
report of the EEO Counselor, the Commission determines that the instant
complaint involved complainant's claim of constructive demotion to the
GS-14 position of ADR Coordinator after being told that he would be
removed as Regional Attorney for the agency's Atlanta District Office.
The events described in complainant's declaration appear to be included as
background information in support of the constructive demotion claim.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified as 29 C.F.R. �
1614.107(a)(5)) provides, in part, that the agency shall dismiss a
complaint that alleges that a proposal to take a personnel action, or
other preliminary step to taking a personnel action, is discriminatory.
The intent of the Regulation is to require dismissal of complaints that
allege discrimination in any preliminary steps which do not, without
further action, affect the complainant.
Here, the agency argues that the alleged statements of the General Counsel
regarding complainant being removed as Regional Attorney amounted at
most to a proposal to take a personnel action. A review of the record
indicates that no action was taken by the agency to remove complainant
from his position with the Atlanta District Office. There is no evidence
by complainant or the agency that the alleged statements by the General
Counsel had been implemented in any manner. It is the decision of this
Commission, therefore, that claim (2) challenges that a proposal to take a
personnel action is discriminatory and therefore was properly dismissed.
We are not persuaded by complainant's contention that he was forced to
accept the ADR Coordinator position based on the alleged statements of the
agency's General Counsel. The agency's decision dismissing complainant's
complaint is hereby AFFIRMED for the reasons set forth herein.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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. 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:
February 10, 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 1In the instant matter, the EEOC is both the respondent and
the adjudicatory authority. The Commission's adjudicatory function is
separate and independent from those offices charges with the in-house
processing and resolution of discrimination complaints. For purposes
of this decision, the term �Commission� or �EEOC� will be used when
referring to the adjudicatory authority and the term �agency� will be
used when referring to the respondent part in this action.
2On November 9, 1999, revised regulation 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.