01981089
11-25-1998
Willie T. Herring v. Department of the Navy
01981089
November 25, 1998
Willie T. Herring, )
Appellant, )
)
v. ) Appeal No. 01981089
) Agency No. DON94-62467-003
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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. and the Age Discrimination in Employment Act
of 1967, as amended (ADEA), 29 U.S.C. �621 et seq. The final agency
decision was issued on October 23, 1997. The appeal was received by the
Commission on November 21, 1997. Accordingly, the appeal is timely
(see 29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC
Order No. 960, as amended.
On December 7, 1993, appellant filed a formal complaint, alleging that he
was the victim of unlawful employment discrimination on the bases of race,
sex, age, and reprisal. In that portion of the complaint form requesting
that complainants provide a description of the alleged incidents of
discrimination, appellant stated that (1) he was denied the representative
of his choice, an agency employee; and (2) that the agency restricted his
representative in the preparation and representation of his EEO cases.
On March 2, 1994, the agency issued a final decision dismissing allegation
1 on the grounds of mootness. In a final decision issued on March 24,
1994, the agency dismissed allegation 2 on the grounds that appellant
raised the same issue in another matter that is pending before the
agency.
Following appellant's appeal from the final agency decisions, the
Commission affirmed the agency's decision to dismiss allegation 1.
Regarding allegation 2, the Commission found that it was improperly
dismissed on the grounds that appellant raised the same issue in a prior
complaint. Specifically, the Commission determined that documents in the
file indicated that in May 1993, the agency accepted for investigation, in
two previously filed complaints, appellant's allegation that it interfered
with appellant's representative in the processing of certain EEO matters.
However, the Commission also determined that the record reflected that
the instant complaint concerned alleged interferences that did not occur
until October 1993, when the agency barred appellant's representative from
using official time to represent appellant. The Commission concluded
that the instant complaint does not raise an issue that is pending
before the agency in another complaint. The Commission reversed the
agency's decision to dismiss allegation 2 for raising the same matter
raised in prior complaints, and remanded allegation 2 to the agency for
further processing. Herring v. USPS, EEOC Appeal No. 01942361 (January
19, 1995).
By letter dated January 30, 1995, the agency informed appellant that
allegation 2 was being accepted for investigation, in accordance with the
Commission's decision of January 19, 1995. Following an investigation
of allegation 2, appellant requested a hearing before an Administrative
Judge, on September 30, 1995.
On October 23, 1997, the agency issued a final decision that is the
subject of the instant appeal. Therein, the agency dismissed allegation
2 for failure to state a claim.
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal
of a complaint which fails to state a claim within the meaning of
29 C.F.R. �1614.103. In order to establish standing initially under
29 C.F.R. �1614.103, a complainant must be either an employee or an
applicant for employment of the agency against which the allegations of
discrimination are raised. In addition, the allegations must concern an
employment policy or practice which affects the individual in his capacity
as an employee or applicant for employment. 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; �1614.106(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 21, 1994).
In allegation 2, appellant alleged that the agency restricted his
representative in the preparation of his EEO cases. In the decision
dated January 19, 1995, the Commission noted that allegation 2 addresses
alleged interference that commenced in October 1993, when the agency
purportedly barred appellant's representative from using official time
to represent appellant. EEOC Regulation 29 C.F.R. �1614.605(b) provides
that if the complainant is an employee of the agency and he designates
another employee of the agency as his representative, the representative
shall have a reasonable amount of official time, if otherwise on duty,
to prepare the complaint and to respond to agency and EEOC requests for
information. Accordingly, the agency's final decision is hereby REVERSED.
Allegation 2 is REMANDED to the a agency for further processing in
accordance with this decision and applicable regulations.
ORDER
The agency is ORDERED to resume processing allegation 2 from the point
processing ceased. The agency shall acknowledge to appellant that it
has received allegation 2 and is reinstating the matter for processing
within thirty (30) calendar days of the date this decision becomes final.
A copy of the agency's letter of acknowledgment to appellant indicating
the reinstatement of allegation 2 must be sent to the Compliance Officer
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
November 25, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations