01981019
11-18-1998
Richard T. Smith, Appellant, v. Donna A. Tanoue, Chairperson, Federal Deposit Insurance Corporation, Agency.
Richard T. Smith, )
Appellant, )
)
v. ) Appeal No. 01981019
) Agency No. FDIC-95-67
Donna A. Tanoue, )
Chairperson, )
Federal Deposit Insurance )
Corporation, )
Agency. )
______________________________)
DECISION
Upon review, the Commission finds that the agency improperly dismissed
appellant's complaint for failure to state a claim, pursuant to 29
C.F.R. �1614.107(a). In the complaint, appellant alleged that he was
denied reclassification and promotion to a Minority and Women Business
Officer, GG-301-14 position. The agency dismissed appellant's complaint
for failure to state a claim finding that after appellant initiated
EEO counseling, a desk audit was requested for appellant's position;
however, appellant objected to an audit until he spoke with the EEO
Counselor. According to the agency, a desk audit is required prior
to the reclassification of a position and, therefore, appellant was
not aggrieved by an agency action, but rather by his own refusal to
undergo an audit. We find, however, that appellant is aggrieved since
he alleged that he was improperly denied reclassification and promotion.
Whether that the subject denial is a result of appellant's refusal to
undergo a desk audit is an issue that goes to the merits of appellant's
complaint, and is irrelevant to the procedural issue of whether he has
stated a justiciable claim under Title VII. See Ferrazzoli v. USPS,
EEOC Request No. 05910642 (August 15, 1991). Based on the foregoing,
we find that appellant's complaint states a claim. Accordingly,
the agency's decision is REVERSED, and the complaint is REMANDED to
the agency for further processing. Since at the time of dismissal,
appellant's complaint had been pending before an Administrative Judge
(AJ) for a hearing, the agency shall resume processing in accordance
with the Order below.
ORDER
The agency is ORDERED to process the remanded complaint in accordance with
29 C.F.R. �1614.109. Specifically, the agency shall forward appellant's
case to the EEOC Washington Field Office for rescheduling of a hearing,
requesting assignment of an Administrative Judge. The agency shall
forward appellant's case to an AJ within thirty (30) calendar days of the
date this decision becomes final. A copy of the agency's correspondence
that transmits the case to the Administrative Judge 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 (M0795)
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:
November 18, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations