01981742
02-25-1999
Floyd K. Mitchell, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Floyd K. Mitchell v. Department of the Army
01981742
February 25, 1999
Floyd K. Mitchell, )
Appellant, )
)
v. ) Appeal No. 01981742
) Agency No. 9711H3230
Louis Caldera, )
Secretary, )
Department of the Army, )
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 December 10, 1997. The appeal was postmarked December 23,
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.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint for failure to state a claim.
BACKGROUND
Appellant contacted an EEO counselor on September 9, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that
he was discriminated against when (1) the Evaluation Performance
Report appellant received on August 27, 1997 was not reflective of
his performance, downgraded his performance during the rating period,
downgraded his performance as a manager and was not timely prepared; and
(2) on August 27, 1997 he was not selected for the position of Military
Personnel Management Officer, GS-205-14, under Announcement Number 97-12.
Informal efforts to resolve appellant's concerns were unsuccessful.
Accordingly, on November 6, 1997, appellant filed a formal complaint
alleging that he was the victim of unlawful employment discrimination
on the basis of race (black).
On December 4, 1997, the agency issued a final decision accepting for
investigation allegation (2) of appellant's complaint but dismissing
allegation (1) for failure to state a claim. Specifically, the agency
determined that appellant failed to demonstrate that he had suffered any
personal loss or harm concerning a term, or condition of his employment.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) states that the agency shall
dismiss a complaint that fails to state a claim under �1614.103 or
�1614.106(a). 29 C.F.R. �1614.103 provides that individual and class
complaints of employment discrimination and retaliation prohibited by
Title VII (discrimination on the bases of race, color, religion, sex and
national origin) shall be processed in accordance with Part 1614 of the
EEOC Regulations. To establish standing as an "aggrieved employee" within
the context of 29 C.F.R. �1614.103, appellant must allege, first of all,
that he has been injured in fact. See Hackett V. McGuire Bros., 445
F.2d 447 (3d Cir. 1971) Specifically, appellant must allege some direct
harm which affects a term, condition, or privilege of employment. See
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
21, 1994).
In the instant case, appellant alleges that the performance evaluation
he received on August 27, 1997 was not reflective of his performance and
that it served only to downgrade his performance as a manager during the
rating period. On appeal, appellant also indicates that the August 27,
1997 evaluation was not timely completed and could not be included in the
promotion package in appellant's application for the position of Military
Personnel Management Officer. Appellant asserts that the inaccurate
performance evaluation coupled with the fact that the evaluation was
late, resulted in his not being selected for the position described in
allegation number (2) of the instant complaint.
The Commission has long held that a remark or comment, unaccompanied by
concrete action, is not a direct and personal deprivation sufficient to
render an individual aggrieved for the purposes of Title VII. See Simon
v. U.S. Postal Service, EEOC Request No. 05940866 (October 3, 1990).
However, in reading allegations (1) and (2) of appellant's complaint
together, the Commission finds that appellant has alleged that the
conduct by the agency in allegation (1), namely that an agency official
provided an inaccurate and untimely performance rating, resulted in
concrete action by the agency, namely, that it failed to select him for
a vacant position. We find therefore, that appellant has stated a claim
of employment discrimination sufficient to justify an investigation
of the merits of the claim. We find further that in this instance,
allegation (1) is inextricably intertwined with allegation (2) which has
been accepted for investigation by the agency. Both parties are advised
that this is not a decision on the merits of appellant's complaint.
CONCLUSION
Accordingly, the agency's decision dismissing a portion of appellant's
complaint is REVERSED and allegation (1) is REMANDED for processing as
ordered below.
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 (MO795)
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:
Feb 25, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations