01a60422
04-11-2006
Peter L. Greenfield, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Peter L. Greenfield v. Department of the Treasury
01A60422
April 11, 2006
.
Peter L. Greenfield,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A60422
Agency No. TD-00-1228
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 22, 2005, dismissing his 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. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of sex (male) and age when:
(1) commencing on September 27, 1997, he was not given the full period
of time for grade retention after his GS-14 position was abolished; and
(2) he was forced to accept a lower graded position when his position
was abolished and became aware that other similarly situated employees
were not required to accept downgrades. The agency initially dismissed
both claims.
In Greenfield v. Dept. of the Treasury, Appeal No. 01A11014 (October
9, 2002), the Commission affirmed the dismissal of the first claim for
failure to contact an EEO counselor in a timely manner. With respect
to claim 2, which the agency dismissed for failure to state a claim, the
Commission returned the matter to the agency, finding it stated a claim.
In the instant decision, the agency dismissed claim 2 again, this time
for failing to contact an EEO counselor in a timely manner, asserting
that complainant first contacted a counselor on May 24, 2000, beyond
the required forty-five days from the time he reasonably suspected
discrimination. However, the record also establishes that, on January
19, 2000, complainant filed an appeal with the Merit Systems Protection
Board (MSPB) concerning his downgrade in which he raised allegations
of age discrimination. While the agency in its final decision asserts
this MSPB appeal cannot be characterized as a �mixed case appeal,�
the Commission disagrees. A fair reading of complainant's MSPB appeal
form indicates that he was clearly attempting to raise a claim of age
discrimination before the Board. Information in the record indicates that
the MSPB subsequently dismissed the appeal for lack of jurisdiction. Given
that the MSPB dismissed the matter for lack of jurisdiction, the agency
should have processed the age discrimination claim as an unmixed
matter in accordance with 29 C.F.R. � 1614.302(c)(2)(ii), using the
date complainant filed the MSPB appeal�January 19, 2000� for timeliness
purposes. Accordingly, the Commission finds the agency's dismissal for
untimely EEO counselor contact was improper and it is reversed.
The Commission notes that it has been more than 3 years since our previous
remand decision and 5 years since the MSPB issued its decision. As such,
the agency is being required to expeditiously comply with the order set
forth 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 fifteen (15) 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 ninety (90) 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 thirty
(30) 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
April 11, 2006
__________________
Date
***FOR OFO INTERNAL CIRCULATION ONLY***
PROCEDURAL CASES
INITIAL
DATE REVIEWED
TO: CARLTON M. HADDEN, DIRECTOR,
OFFICE OF FEDERAL OPERATIONS
HILDA RODRIGUEZ, DIRECTOR,
APPELLATE REVIEW PROGRAMS
APPEAL NUMBER
AGENCY NUMBER
REQUEST NUMBER
HEARING NUMBER
01A60422
TD-00-1228
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL
TITLE
NAMES
INITIAL
DATE REVIEWED
ATTORNEY:
4/10/06
SUPERVISOR:
Mary Jean Secoolish
DIVISION DIR:
Catherine McNamara
RM COORDINATION (Findings and Remands Only - 4Q)
RM Team Leader: RM Team Leader Initials: Date:
COMPLAINANT(S):
Peter L. Greenfield
AGENCY:
Department of the Treasury
DECISION:
Reversed
STATUTE(S)
Title VII and ADEA
BASIS(ES):
GM and OA
ISSUE(S):
D1 and O1
TYPIST/DATE:
/4/10/06
SPELL CHECK
Yes
(PLEASE CHECK ALL APPLICABLE CODES)
PROCEDURAL CODES
OTHER CLOSURE CODES
X 3K - Procedural Decision
? 3N - Appeal Denied/Dismissed
? 3P - Adverse Inference
? 4H - OFO Affirmed FAD
? 3M - OFO Reversed and Remanded
? 4J - OFO Modified FAD
? 3L - OFO Vacated/Remanded ALL of
Agency's Merits Decision
? 4Q - Compliance Required
? 3B - FAD Rescinded
? 3C - Duplicate Docket Number
? 3D - Withdrawal
? 3E - Complaint Settled
? 3G - Other Letter Closure
? 3R - Return to Agency for Consolidation
? 3S - Return to AJ for Consolidation
? 7N - Civil Action Filed
Revised 4/30/02
Appellate Review Program Companion Case Checklist
COMPLAINANT
AGENCY
Appeal/Request/Petition No.
Peter L. Greenfield
Department of the Treasury
01A60422
OPEN
CASES (#)
ORADS
STATUS
RELATED
(YES/NO)
ACTIONS
TAKEN
CLOSED
CASES (#)
ORADS
STATUS
RELATED
(YES/NO)
ACTIONS
TAKEN
4/10/06
______________________ _______________
ATTORNEY DATE