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.