0120092067
09-09-2009
Gary L. Dixon,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120092067
Agency No. 093953900640
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 9, 2009, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time of the incident, complainant was a civilian employee of the
agency and was employed as an Aircraft Planner & Estimator (Planner).
According to his complaint, the agency has a system whereby Planners were
assigned to an oceangoing ship for a period of time. Each Planner's
name was placed on a list with those at the top being assigned trips
earlier in the year and those lower down being assigned later in the year.
Complainant states that he was at the bottom of the list in 2008 and so
was assigned oceangoing ship duty during the end of that year and during
the Christmas holidays. He maintains that when the 2009 list came out,
the order should have been reversed and he should have been at or near
the top of the list. Instead, he maintains, he was again placed at
the bottom. Finally, complainant maintains that such a placement on
the list adversely impacts his ability to earn overtime. Specifically,
complainant alleged that he was subjected to discrimination on the basis
of age (52 years at time of incident) when:
1. On January 1, 2009, complainant was notified he was being placed on
an unfavorable work schedule that decreased his ability to earn overtime.
The agency characterized the claim1 differently, as follows: "on
January 1, 2009, management implemented the 2009 Planner Ship Rotation
list which listed complainant last in the rotational assignment for
overtime work, which would have resulted in complainant having to work on
Christmas 2009". The agency dismissed the claim pursuant to 29 C.F.R. �
1614.107(a)(5) for alleging dissatisfaction with a proposed action.
The Final Agency Decision (FAD) found that the Ship Rotation list was
"a projection based on anticipated ship activity" FAD, p. 3, and that
at the time of his complaint, complainant was not adversely affected by
his position on the list.
We find, however, that the FAD misinterprets �107(a)(5). That section
states that an agency shall dismiss a complaint that alleges that a
proposal to take a personnel action is discriminatory. While the Ship
Rotation list might change "based on anticipated ship activity," the
fact remains that the Ship Rotation list is not a "proposed personnel
action" for the purposes of � 107(a)(5). The list does not propose to
place complainant last in the rotation, it does place him last, absent
unforeseen future events. If the agency's argument were accepted,
virtually any agency action could be described as a proposed action,
since it can almost always be said that future events might cause an
agency to, for example, rescind a hiring decision, or a poor evaluation,
or a decision to grant or deny leave.
Following a review of the Formal Complaint and the record as a whole,
we find that complainant's complaint is more accurately characterized as
it is on the first page of this decision. Furthermore, we find that being
placed on an unfavorable work schedule that adversely limits opportunities
for overtime states a valid claim and we REVERSE the FAD and REMAND to
the agency for further processing in accordance with the ORDER below.
ORDER (E0408)
The agency is ordered to process the remanded claim in accordance with
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 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 (R0408)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 9, 2009
__________________
Date
1 The agency's final decision addressed five claims, dismissing them all.
On appeal, complainant states that he accepts the dismissal of four
of the claims and that he is only appealing the claim listed above.
This decision, therefore, only addresses the January 1, 2009 Ship Rotation
list claim.
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0120092067
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092067