01A04979
10-04-2001
Joe L. Mims, Complainant, v. Gordon R. England, Secretary, Department of the Navy, (Public Works Center) Agency.
Joe L. Mims v. Department of the Navy
01A04979
October 4, 2001
.
Joe L. Mims,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
(Public Works Center)
Agency.
Appeal No. 01A04979
Agency No. 00-00187-063
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated March 26, 2000, dismissing his complaints of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. In his complaint, complainant alleged that he was subjected
to discrimination on the bases of race (Black) and age (DOB 8/29/37) when:
(1) Management continuously denied him the opportunity to work as much
overtime as two other WS-11 supervisors; and
(2) Management denied him the opportunity to be placed in the position
of Duty Supervisor, upon the retirement of the individual who formerly
held that position.
The agency dismissed claim (1) in accordance with 29 C.F.R. �
1614.107(a)(1) for failure to state a claim, and claim (2) in accordance
with 29 C.F.R. � 1614.107(a)(2) for raising a matter not previously
brought to the attention of an EEO Counselor. The Commission accepts
the appeal in accordance with 29 C.F.R. � 1614.405.
The record reflects that, at the relevant time, complainant was employed
as a Heavy Mobile Equipment Mechanic Supervisor I (WS-11). Complainant
sought EEO counseling and brought to the attention of the EEO counselor
his complaint of having to alternate overtime with two WS-10 supervisors
which impaired his ability to work overtime every weekend. He further
alleged that his former supervisor, who is not in his protected class,
was only made to alternate overtime with one other WS-11, which enabled
the two of them to work more overtime.
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. See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). 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, complainant contends that he has been denied the opportunity to
work more overtime. Because complainant has alleged that the adverse
action by his employer was based on his race and age, he has raised a
claim within the purview of the EEOC regulations.
Therefore, as to his claim of disparate treatment with regard to overtime,
complainant has alleged to have suffered an injury or harm to a term,
condition, or privilege of employment. Accordingly, the Commission
reverses the agency's final decision dismissing complainant's claim of
disparate treatment, as it relates to overtime.
In addition, the record shows that, in his formal complaint, complainant
specifically raised for the first time his allegation that he was
wrongfully not given the opportunity to fill the position formerly held
by his former supervisor. However, in its FAD, and again on appeal,
the agency contends that complainant did not raise this issue prior to
filing his formal complaint. On appeal, complainant has submitted as
evidence a letter entitled �Rebuttal to Informal Resolution Attempts�
which states, in pertinent part, the following:
1) �[m]anagement has not articulated the case or complaint as I have
submitted it�; and,
2) �the complaint is not about overtime, but the denial of a WS-11
supervisory position�; and,
3) �management chose to place a white male WS-10 in the slot I should
have been given.�
It is clear to the Commission that complainant's contention from the
beginning has been that he was denied the opportunity to take over his
former supervisor's position as Duty Supervisor, and as such, he has
suffered by not having the opportunity, that his former supervisor had,
to work overtime every weekend. The regulation set forth at 29 C.F.R. �
1614.107(a)(2) states, in pertinent part, that an agency shall dismiss
a complaint which raises a matter that has not been brought to the
attention of an EEO Counselor, and is not like or related to a matter
on which the complainant has received counseling. A later claim
or complaint is "like or related" to the original complaint if the
later claim or complaint adds to or clarifies the original complaint
and could have reasonably been expected to grow out of the original
complaint during the investigation. See Scher v. United States Postal
Service, EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United
States Postal Service, EEOC Request No. 05891068 (March 8, 1990). It
is the determination of the Commission that complainant's more recent
complaint regarding nonselection clarifies the first claim considerably.
In fact, the two claims appear to be inextricably-related. Accordingly,
the Commission REVERSES the agency's final decision.
Therefore, it is the decision of the Commission to REMAND the final
agency decision for further processing in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims 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.
A copy of the agency's letter of acknowledgment to complainant 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 (K0501)
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 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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 4, 2001
__________________
Date