01a40258
02-10-2004
Michael A. Fain, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Michael A. Fain v. Department of Justice
01A40258
February 10, 2004
.
Michael A. Fain,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A40258
Agency No. F-03-5776
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated September 30, 2003, dismissing her complaint 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.
On February 20, 2003, complainant initiated contact with an EEO Counselor.
Informal efforts to resolve his concerns were unsuccessful.
In a formal complaint filed on May 30, 2003, complainant alleged that
he was discriminated against on the bases of race, sex, age, and in
reprisal for prior EEO activity when:
On December 21, 2001, complainant was transferred from [a position
as an instructor in] the Practical Applications Unit (now called the
Operational Skills Unit) and placed in the National Firearms Program
Unit;
On November 14, 2002 complainant learned that he would not be awarded
a Quality Step Increase;
On November 14, 2002 complainant learned that he was not selected for
a Term GS-15 Security Officer position in the Training Division; and
On February 10, 2003, complainant was advised by the Unit Chief that
the Section Chief had stated that �teaching new agents was not to be in
[complainant's] future.�
The agency's September 30, 2003 decision dismissed claims (1) -
(3) for untimely EEO Counselor contact, and claim (4) for failure to
state a claim. Regarding claims (1) - (3), the agency determined that
complainant's February 20, 2003 EEO Counselor contact was more than
forty-five days beyond the alleged agency actions in claims (1) - (3),
and therefore was untimely. Regarding claim (4), the agency found that
complainant had failed to allege a present harm associated with the claim.
On appeal, complainant asserts, among other things, that �[h]e was
not notified of his rights to avail himself of the EEO process, nor
was he given any information concerning the applicable deadlines and
timetable.� Complainant also asserts that, with regard to claim (4),
he suffered harm �when he was formally notified that his removal from
teaching was permanent.�
Claim (4)
Upon review of the entire record, the Commission first finds that
complainant's claim (4) was properly dismissed for failure to state
a claim. The record indicates (and complainant acknowledges) that on
December 31, 2001, complainant was transferred from his teaching position
to the National Firearms Program Unit. Contrary to complainant's claim
on appeal, the Commission determines that the alleged statement by
complainant's Section Chief that �teaching new agents was not to be in
[complainant's] future,� does not constitute a formal notification of
permanent removal or represent in any way a new and separate agency
action apart from his original reassignment. The Commission has
repeatedly found that remarks or comments unaccompanied by a concrete
agency action are not a direct and personal deprivation sufficient to
render an individual aggrieved for the purposes of Title VII. See Backo
v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); Henry v. United States Postal Service, EEOC Request No. 05940695
(February 9, 1995). Consequently, we find that claim (4) was correctly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
Claims (1) - (3)
Concerning the agency's dismissal of claims (1) - (3) for untimely
Counselor contact, EEOC Regulations provide that the agency or the
Commission shall extend the time limits when the individual shows that
he was not notified of the time limits and was not otherwise aware of
them, that he did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he was prevented by circumstances beyond his control from
contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.
In the present case, we find that there is insufficient evidence in
the record to determine if complainant was notified, constructively
or otherwise, of the time limits for contacting an EEO Counselor.
Complainant contends on appeal that he was never notified of the
time limits. There is no evidence in the record, including the EEO
Counselor's report, addressing whether complainant had notice of the
time limits for contacting an EEO Counselor. Consequently, we remand
the matter to the agency to conduct a supplemental investigation and to
supplement the record with evidence concerning whether complainant was
notified of the time limits or was otherwise aware of them.
Accordingly, the agency's decision to dismiss claim (4) for failure to
state a claim is AFFIRMED. The agency's decision to dismiss claims (1) -
(3) for untimely EEO contact is VACATED, and the claims are REMANDED to
the agency for further processing in accordance with the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall undertake a supplemental investigation to determine if
complainant was given notice, constructive or otherwise, of the time
limits for contacting an EEO Counselor. The agency shall supplement
the record with any relevant documentation obtained as a result of
its investigation, specifically including affidavits from complainant,
the EEO Counselor, and any relevant EEO personnel.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue a notice of processing and/or a new decision
concerning claims (1) - (3) of complainant's complaint.
A copy of the agency's notice of processing and/or new decision 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
February 10, 2004
__________________
Date