01980887
10-02-1998
Dermond Kelleher, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Dermond Kelleher, )
Appellant, )
)
v. ) Appeal No. 01980887
) Agency No. KVIM97038
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
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 September 30, 1997. The appeal was postmarked
November 3, 1997. Accordingly, the appeal is considered timely<1> (see 29
C.F.R. �1614.402(a)), in accordance with EEOC Order No. 960, as amended.
The record reflects that by memorandum dated April 24, 1997, the agency
apprised appellant that a preliminary decision was made to revoke
his eligibility for access to classified information or employment in
sensitive duties; that the preliminary decision would become final if
appellant did not respond to the memorandum; and that his access to
classified information was suspended pending the final determination by
the agency.
The record reflects that appellant initiated contact with an EEO Counselor
on May 6, 1997. The EEO Counselor's Report reflects that appellant
underwent EEO counseling regarding the issuance of the memorandum of
April 24, 1997, discussed above. Informal efforts to resolve appellant's
concerns were unsuccessful.
On September 12, 1997, appellant filed a formal complaint, alleging that
he was the victim of unlawful employment discrimination on the bases of
race and age.
On September 30, 1997, the agency issued a final decision. Therein, the
agency found that appellant's complaint was comprised of one allegation,
identified in the following manner:
[Appellant] received a letter, on 9 May 97, dated 24 Apr 97, the subject
of which was "Intent to Revoke Eligibility for Access to Classified
Information or Assignment in Sensitive Duties. . . , allegedly issued in
order to begin termination proceedings against [appellant] or in order
to have [him constructively discharged.
The agency dismissed appellant's complaint on the grounds that appellant
alleged that a proposed agency action is discriminatory. The agency
determined that appellant alleged that the agency memorandum of April 24,
1997, is preliminary to termination proceedings "which have not yet been
initiated but which you anticipate will be initiated in the future."
The agency also dismissed appellant's complaint on the alternative
grounds of failure to state a claim.
EEOC Regulation 29 C.F.R. �1614.107(e) provides that the agency shall
dismiss a complaint or a portion of a complaint that alleges that a
proposal to take a personnel action, or other preliminary step to taking
a personnel action, is discriminatory.
In this case, the agency's dismissal of appellant's complaint for
alleging that a proposed agency action was discriminatory was predicated
upon a determination that appellant construed an April 24, 1997 agency
memorandum revoking his eligibility to access of classified information
as preliminary to termination proceedings. However, we find that the
April 24, 1997 memorandum was not a proposed agency action but was,
instead, a completed action. The memorandum expressly states that the
"preliminary decision" to revoke appellant's eligibility will become final
if appellant fails to respond and indicates that appellant's access to
classified information was suspended, pending a final determination of
the agency. The record contains no evidence reflecting that the agency
action did not become final subsequent to the issuance of the April
24, 1997 memorandum. Accordingly, the Commission determines that the
agency's decision to dismiss appellant's complaint for alleging that a
proposed action was discriminatory was improper and is REVERSED.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex, and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination
on the basis of disability) shall be processed in accordance with Part
1614 of the EEOC Regulations. In addition, the U.S. Supreme Court has
stated that an employee is aggrieved when some personal loss or harm
has been suffered with respect to a term, condition, or privilege of
employment. See Trafficante v. Metropolitan Life Insurance Co., 409
U.S. 205 (1972).
The only proper questions in determining whether an allegation is
within the purview of the EEO process are (1) whether the complainant
is an aggrieved employee and (2) whether he has alleged employment
discrimination covered by the EEO statutes. An employee is "aggrieved"
if he has suffered direct and personal deprivation at the hands of the
employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133
(March 2, 1990). Here, appellant alleged that his access to classified
information was improperly revoked. Appellant's allegation is sufficient
to render him an aggrieved employee. Because appellant has alleged
that the adverse action was based on race and age, he has raised an
allegation within the purview of the EEOC regulations. Accordingly, the
agency's decision to dismiss appellant's complaint on the alternative
grounds of failure to state a claim was improper and is REVERSED.
Appellant's complaint is REMANDED to the agency for further processing
in accordance with this decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation 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:
Oct. 2, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations1 The
dismissal of a complaint or a portion
of a complaint may be appealed to the
Commission within thirty (30) calendar
days of the date of the complainant's
receipt of the dismissal or final
decision. See 29 C.F.R. �1614.402(a).
Because the agency failed on appeal
to supply a copy of the certified
mail receipt or any other material
capable of establishing that date, the
Commission presumes that the appeal was
filed within thirty (30) calendar days
of the date of appellant's receipt
of the final decision.