Willie F. Toomer, Jr., Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMar 17, 2000
01991002 (E.E.O.C. Mar. 17, 2000)

01991002

03-17-2000

Willie F. Toomer, Jr., Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Willie F. Toomer, Jr. v. Department of the Air Force

01991002

March 17, 2000

Willie F. Toomer, Jr., )

Complainant, )

)

v. ) Appeal No. 01991002

) Agency No. AL900990170

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

____________________________________)

DECISION

On November 12, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by him on

October 16, 1998, pertaining to his 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.<1> In his complaint, complainant

alleged that he was subjected to discrimination on the bases of race

(African-American) and color (black). The agency defined the complaint

as alleging harm when:

Complainant's tour overseas was not extended; and

Complainant's four prior EEO complaints were improperly processed.

The agency dismissed claim (1) for alleging harm from a proposed action.

Specifically, the agency found that complainant merely received notice

that his overseas tour would end August 1, 1998, but that the tour had

not expired when he filed his complaint. Further, the agency found

that complainant failed to state a claim because he was aware that his

overseas tour would not extend beyond five years, and acknowledged that

his tour would end on August 1, 1998, by signing a document to that

effect on April 27, 1998. The agency dismissed claim (2) for failure

to state a claim, because it concerns the processing of other claims.

In response to the appeal, the agency argued that the extension of an

overseas tour is not an entitlement, and therefore, its denial did not

render complainant aggrieved. Further, the agency asserted that claim

(2) stems from settlement discussions of complainant's other pending

EEO complaints.

In his formal complaint, dated July 12, 1998, complainant alleged that

he was not granted an end-of-tour extension while white employees were

granted extensions to work overseas for more than five years. He also

claimed that improper pressure was exerted when he was told that he

could receive an extension if he dropped his four pending complaints

of discrimination.

The record also contains several documents concerning extensions for

complainant's overseas tour. Complainant requested an extension by letter

dated July 16, 1998. Further, complainant's supervisor requested that

complainant's tour be extended twice, by letter dated June 25, 1998, and

July 21, 1998. The record also includes a notification from the Deputy

Chief of Services, dated April 27, 1998, informing complainant that

his tour would expire on August 1, 1998, and noting that complainant's

position did "not warrant an extension." Finally, the agency provided

an undated, unsigned document identified as "documents provided by CPO,"

presumably the Civilian Personnel Office, stating that "All extension[s]

. . . beyond five years of overseas employment not in a Career Program

position, are only [to] be approved by the Wing Commander, therefore [the

Deputy Chief of Services] is not authorized to approve extensions. . . ."

The document further stated that "we no longer have any record of employee

no longer in our employment."

We note that when a complaint is filed on a proposed action and the agency

subsequently proceeds with the action, the action is considered to have

merged with the proposal. See Siegel v. Department of Veterans Affairs,

EEOC Request No. 05960568 (October 10, 1997); Charles v. Department of the

Treasury, EEOC Request No. 05910190 (February 25, 1991). Complainant's

overseas tour ended August 1, 1998, prior to the issuance of the FAD.

Further, the civilian personnel office appears to confirm that it had no

further record that complainant was employed by the agency. Therefore,

the Commission finds that the proposal to end complainant's overseas

tour merged with its expiration, and dismissal for alleging harm from

a proposed action was improper.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 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

22, 1994).

Claim (1) clearly states a claim. The decision whether complainant's

tour should be extended affects a term, condition, or privilege of

complainant's employment. Further, the agency's arguments on appeal

concern whether the grant of an extension is an "entitlement" and whether

the agency followed its internal regulations by denying complainant's

extension request. These matters address the merits of the claim

without a proper investigation as required by the regulations, and are

irrelevant to the procedural issue of whether he has stated a justiciable

claim under Title VII. See Osborne v. Department of the Treasury, EEOC

Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service,

EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States

Postal Service, EEOC Request No. 05910642 (August 15, 1991).

In claim (2), complainant did not claim harm from the improper processing

of a prior complaint. However, he is alleging harm from the agency's

offer to settle the prior complaints. "Settlement negotiations,

including any statements or proposals, are to be treated as confidential

and privileged to facilitate a candid interchange to settle disputes

informally." Harris v. Department of the Navy, EEOC Request No. 05941002

(March 23, 1995). To allow a new complaint based on a settlement offer

would defeat this purpose. See Millea v. Department of Veterans Affairs,

EEOC Request No. 05980235 (May 21, 1998); Montague v. Department of the

Army, EEOC Request No. 05920231 (May 2, 1992); see also Green v. United

States Postal Service, EEOC Request No. 05980207 (June 25, 1998) (agency's

withdrawal of an offer made in settlement not actionable). Therefore, the

agency's dismissal of claim (2) for failure to state a claim was proper.

CONCLUSION

Accordingly, the agency's dismissal of claim (1) is REVERSED, and the

claim is REMANDED for further investigation. The agency's dismissal of

claim (2) is AFFIRMED.

ORDER (E1199)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claims 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 an

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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

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 (T1199)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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:

March 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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

1On 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.