01985909
08-27-1999
David Jones, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
David Jones v. Department of Transportation
01985909
August 27, 1999
David Jones, )
Appellant, )
)
v. ) Appeal No. 01985909
) Agency No. 98-1316
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
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. The final agency decision was received by
appellant on July 7, 1998. The appeal was postmarked July 27, 1998.
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.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim.
BACKGROUND
The instant matter initially came before the Commission pursuant to EEOC
Appeal No. 01966649. Therein, appellant was appealing the agency's August
9, 1996 final decision (FAD) dismissing his complaint for failure to
state a claim. Appellant's complaint alleged that he was discriminated
against based on his race (black) and sex (male) when on March 6, 1996
he was informed by his supervisor that his hopes of being promoted to
a management position in the Atlanta District were unrealistic.
The August 9, 1996 FAD found that appellant had not suffered a direct,
personal deprivation at the hands of the agency. Specifically, the
agency determined that appellant was not an aggrieved employee within the
meaning of EEOC Regulations. In a Commission decision dated October 17,
1997 appellant's complaint was remanded to the agency for clarification
of the issues complained of. See Jones v. Department of the Treasury,
EEOC Appeal No. 01966649 (October 17, 1997). Specifically, the Commission
found that the agency had misdefined appellant's complaint allegations.
Id. The Commission found that appellant's complaint encompassed incidents
form 1991 to 1996 which should have been considered together as one
complaint. Id. The Commission further found that it was unclear from
appellant's complaint and his statements on appeal, whether the matters
complained of were live allegations or merely background information.
Id. Accordingly, the Commission ordered the agency's EEO Counselor to
meet again with the appellant to identify the exact issues encompassing
appellant's complaint. Id.
On remand, and after appellant's clarification of the issues in dispute,
the agency defined appellant's complaint allegation as follows:
"Whether Complainant was informed in a memorandum from his Branch Chief
dated March 6, 1996, that his hopes of being promoted to a management
position in the Atlanta District were unrealistic."
On June 29, 1998, the agency issued a final decision again dismissing
appellant's complaint for failing to state a claim. The FAD determined
that based on appellant's April 9, 1998 clarification letter and based on
the report of the EEO Counselor, appellant's sole complaint issue involved
the March 6, 1996 memorandum from his supervisor indicating that he
would not be promoted to the position of manager in the Atlanta District.
The June 29, 1998 agency decision found that appellant failed to show how
he was harmed by his supervisor's written opinion that his hopes for a
position as a manager were unrealistic. As such, the agency determined
that appellant failed to demonstrate that he was an aggrieved employee.
The agency also determined that because appellant did not specify a
position for which he was not selected, he failed to show that he had
suffered a present harm with respect to a term, condition, or privilege
of employment. Finally, as a result of its determination that appellant
failed to state a claim of employment discrimination, the FAD rejected
appellant's request for compensatory damages. The instant appeal is
from the agency's June 29, 1998 decision.
ANALYSIS AND FINDINGS
Upon review of the record herein, we determine that the agency's June 29,
1998 decision dismissing appellant's complaint for failure to state a
claim was improper. EEOC Regulation 29 C.F.R. �1614.107(a) provides,
in relevant part, that an agency shall dismiss a complaint, or portion
thereof, 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; �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).
The decision of this Commission dated October 17 1997, ordered the parties
to meet and to clarify the issues in appellant's complaint. In response
to the Commission's order appellant drafted a memorandum dated April 9,
1998 stating that "The issue to be considered is discrimination in the
management development program of the Criminal Investigation Division
in the Internal Revenue Service." The Commission finds that thus, the
appellant's complaint states a claim that he has been discriminated
against in the Management Development Program by not being properly
prepared for promotion to a manager position in the Atlanta District.
The March 6, 1996 statement that appellant's hopes for promotion to
a management position in the Atlanta District were unrealistic was
merely the sounding of an alarm to appellant that something was amiss.
The appellant then sought EEO counseling concerning the agency's
on-going treatment of him in the Management Development Program since
his acceptance into the Program in 1991.
CONCLUSION
Based on a careful review of the record, the agency's decision dismissing
appellant's complaint for failure to state a claim is REVERSED.
The complaint is REMANDED to the agency for processing in accordance
with this decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a 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 (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:
August 27, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations