William S. Clement, Complainant,v.Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity CommissionFeb 17, 2000
01981786 (E.E.O.C. Feb. 17, 2000)

01981786

02-17-2000

William S. Clement, Complainant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.


William S. Clement v. National Aeronautics and Space Administration

01981786

February 17, 2000

William S. Clement, )

Complainant, )

)

v. ) Appeal No. 01981786

) Agency No. NCN-97-HQS-A028

Daniel S. Goldin, )

Administrator, )

National Aeronautics and Space )

Administration, )

Agency. )

_______________________________)

DECISION

The Commission finds that the agency's December 9, 1997 decision

dismissing the complaint on the bases of mootness, untimely EEO

counselor contact, failure to state and because it raised a proposal

to take a personnel action, is proper pursuant to the provisions of 64

Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.107(a)(1), (2) and (5).<1>

The record shows that on October 28, 1996, Complainant filed a grievance.

A decision was subsequently issued on March 27, 1997, concerning the

grievance.

On March 27, 1997, Complainant sought EEO counseling alleging that he

had been continuously discriminated against on the bases of sex (male),

race (Caucasian), color (white), and age (over 40) when:

(1) (a) he was denied the opportunity to file a grievance on the ranking

and rating process for Vacancy Announcement No. HQ-96-21;

(b) management refused to further discuss the arrangement for his detail

to the Navy;

(c) on October 13, 1996, he was informed that he was not selected for

the position of Procurement Analyst GS-15, advertised under Vacancy

Announcement No. HQ-96-21, and on March 27, 1997, he became aware that

there were irregularities in the ranking and rating process that may

have contributed to his non-selection;

(d) the February 6, 1997 final decision on

Complainant's grievance

did not grant him the relief sought by changing the failing ratings

on non-critical elements in his performance plan and restoring e-mails

which were removed;

(e) management divulged Privacy Act information about Complainant in

the presence of two other NASA employees on August 7, 1996;

(f) on September 5, 1996, management denied Complainant the relief sought

in his informal grievance;

(g) Complainant was issued his performance appraisal which contained

negative comments and fail ratings on two non-critical elements on August

19, 1996;

(h) management directed Complainant's requests for the restoration of

his e-mails be canceled on May 1, 1996, and July 3, 1996;

(i) on March 18, 1996, Complainant was advised that the withholding

of his within grade increase was not an adverse action but management

refused to put this advice in writing;

(j) between February 22-26, 1996, e-mails important to his grievance

disappeared from Complainant's computer;

(k) Complainant was placed on a performance improvement plan (PIP) on

February 22, 1996, and as a result, his within grade increase was delayed;

(l) KM became Complainant's supervisor on July 1, 1995, and required him

to perform duties which were not reflected in his position description

(PD);

(m) Complainant was required to perform two jobs to support GS-14 grade

in August 1995;

(n) Complainant began administering contracts in July 1995, and was not

reissued a Contractor Officer's Warrant;

(o) management denied Complainant and other white males over the age of

40, the opportunity of applying for the GS-15 position advertised under

Vacancy Announcement No. HQ-96-21 in September 1996, but subsequently

rescinded its decisions allowing Complainant and the other males to

apply after Complainant filed his grievance;

(p) management drafted a PD for all GS-14 Contract Specialists on

September 1, 1996, which would deny any bumping rights to Complainant and

all white males over the age of 40, if a Reduction in Force were to occur;

(q) Complainant was informed by the Director of Human Resources Management

Division that his position only supports a GS-13 grade; and,

(2) on February 25, 1997, Complainant was threatened with the possibility

of an illegal transfer to Pasadena, California.<2>

The agency issued a final decision dismissing all the claims of the

complaint. Claims (c), (d), (e), (f), (g), (h), (i), (j), (k), (l),

(m), (n), (o) and (p) were dismissed on the basis of untimely EEO

counselor contact. Claims (e), (i) and (p) were also dismissed on

the alternate grounds of failure to state a claim. Claim (o) was also

dismissed on the alternate grounds of mootness. Claim (a) was dismissed

on the grounds of mootness. Claim (b) was dismissed on the basis that

it had not been brought to the attention of the EEO counselor and on the

alternate grounds of mootness. Claim (q) was dismissed on the grounds

that it failed to state a claim. Claim (2) was dismissed on the basis

that it raised a proposal to take a personnel action.

On appeal, Complainant states that he filed a grievance on October

28, 1996. Complainant further contends that if the agency had followed

statutory guidelines and rejected his grievance by November 2, 1996, he

would have been able to seek counseling in a timely manner. Complainant

further states that although on October 28, 1996, he "suspected that

the agency was trying to force him out of the government, he did not

file an EEO complaint because he did not have substantial evidence" to

support his claims. Complainant further contends that "it was difficult

to address issues in the grievance process because facts and documents

are withheld from the employee". Finally, Complainant claims that he

has shown a continuing violation because after being placed on a PIP

on February 22, 1996, on June 20, 1997, he was reassigned from the

Contracting Series to Management Analyst.

The Commission applies a "reasonable suspicion" standard to the

triggering date for determining the timeliness of the contact with an

EEO counselor. Cochran v. United States Postal Service, EEOC Request

No. 05920399 (June 18, 1992). Under this standard, the time period

for contacting an EEO counselor is triggered when the complainant should

reasonably suspect discrimination, but before all the facts that would

support a charge of discrimination may have become apparent. Id.; Paredes

v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982). A review of the record shows

that claims (c) - (p) raise incidents which allegedly occurred as early as

July 1995, through October 1996. Although Complainant acknowledges that

he suspected discrimination since at least October 28, 1996, he did not

seek EEO counseling until March 27, 1997, the date in which a decision

was made regarding his grievance. The Commission has specifically held

that internal efforts or appeals of an agency's adverse action and/or

the filing of a grievance do not toll the running of the time limit to

contact an EEO counselor. See Hosford v. Department of Veterans Affairs,

EEOC Request No. 05890038 (June 9, 1989). Based on the foregoing, we

find that Complainant's continuing violation claim was not appropriate.

Accordingly, Complainant's EEO counselor contact on March 27, 1997,

was untimely. Claims (c) - (p) were properly dismissed by the agency

on the basis of untimely EEO counselor contact.<3>

A review of the record shows that during the inquiry of his informal

complaint of discrimination, Complainant did not bring to the attention

of the EEO counselor the issue raised in claim (b). Accordingly,

claim (b) was properly dismissed by the agency pursuant to 29

C.F.R. �1614.107(b). In claim (2) Complainant alleged that he was

threatened with the possibility of an illegal transfer to Pasadena,

California. 29 C.F.R. �1614.107(e) provides that the agency may dismiss

a complaint or portion of a complaint that raises a proposal to take

a personnel action or other preliminary step to a personnel action.

The record does not show that Complainant was transferred to Pasadena,

California. Accordingly, claim (2) was properly dismissed on the grounds

of raising a proposal to take a personnel action.

In claim (a) Complainant claimed that he was denied the opportunity

to file a grievance on the ranking and rating process for Vacancy

Announcement No. HQ-96-21. The agency dismissed this claim on the grounds

of mootness after finding that Complainant had filed his grievance on

October 28, 1996. EEOC Regulation 29 C.F.R. �1614.107(e) provides in

relevant part that an agency shall dismiss a complaint or portion of

a complaint that is moot. The United States Supreme Court has held

that a discrimination complaint is moot when: (1) it can be said with

assurance that there is no reasonable expectation that the alleged

violation will recur; and (2) interim relief or events have completely

and irrevocably eradicated the effects of the alleged violation.

County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). Under such

circumstances, no relief is available and thus there is no need for a

determination of the rights of the parties. Id. The record shows that

Complainant filed his grievance in October 1996, and that a decision on

his grievance was issued on March 27, 1997. Under these circumstances,

the agency has shown that Complainant's claim is in fact moot.

Finally, in claim (q) Complainant alleged that he was informed by

the Director of Human Resources Management Division that his position

only supports a GS-13 grade. The agency dismissed this claim on the

grounds of failure to state a claim. On appeal Complainant claims that

he has suffered harm because on June 20, 1997, he was reassigned from

the Contracting Series to Management Analyst. There is no indication,

however, that Complainant was downgraded to a GS-13 position.

An agency shall accept a complaint from any aggrieved employee or

applicant 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; �1614.106(a). The Commission

has held that while the regulations do not define the term "aggrieved

employee," the United States Supreme Court has interpreted it to mean

an employee 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 (Apr. 21,

1994). "To state a claim under our regulations, an employee must allege

and show an injury in fact." Id. (citing Hackett v. McGuire Bros., 445

F.2d 447 (3d Cir. 1971)). "Specifically, an employee must allege and

show a `direct, personal deprivation at the hands of the employer,'

that is, a present and unresolved harm or loss affecting a term,

condition or privilege of his/her employment." Id. (citing Hammonds

v. United States Postal Serv., EEOC Request No. 05900863 (Oct. 31,

1990); Taylor v. United States Postal Serv., EEOC Request No. 05900367

(June 2, 1990)). Moreover, the Commission has previously held that an

isolated comment or remark unaccompanied by concrete action is not direct

and personal deprivation sufficient to render an individual aggrieved.

Horvath v. Department of the Navy, EEOC Request No. 05960780 (October

23, 1998). Based on the foregoing, we find that claim (q) was properly

dismissed on the basis of failure to state a claim. Accordingly, the

agency's final decision is AFFIRMED.<4>

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 17, 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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date Equal Employment Assistant

1 On 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.

2 Regarding this claim, Complainant also alleged discrimination on the

basis of reprisal for filing a complaint with the Office of Special

Counsel.

3 Based on our finding, we need not address the agency's alternate bases

for dismissal of some of these claims.

4 Because we affirm the agency's decision to dismiss all of the claims

for the reasons stated herein, we find it unnecessary to address the

agency's decision to dismiss some of the claims on alternate grounds.