Russell S. Lowe, Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 23, 2012
0120114174 (E.E.O.C. Feb. 23, 2012)

0120114174

02-23-2012

Russell S. Lowe, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.




Russell S. Lowe,

Complainant,

v.

Ray Mabus,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120114174

Agency No. 110002500398

DECISION

Complainant filed a timely appeal with this Commission from the

Agency's decision dated August 4, 2011, 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. Upon review, the Commission finds that Complainant's complaint

was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for

failure to state a claim.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked

as a Equal Employment Opportunity Specialist at the Agency’s Naval

Facilities Engineering Command facility in Washington, DC.

On January 25, 2011, Complainant filed a formal complaint alleging

that the Agency subjected him to discrimination on the bases of race

(African-American) and national origin (Asian)1 when, during the

Agency’s conversion from the National Security Personnel System (NSPS)

back to General Schedule (GS) grading system, he was converted to an

EEO Specialist GS-12 even though prior to the adoption of the NSPS,

he was a GS-13.

On August 4, 2011, the Agency issued a final decision dismissing

the complaint for failure to state a claim. The Agency reasoned

that Complainant was collaterally attacking the NSPS conversion

process. Further, the Agency asserted that Complainant held a Human

Resources position when he was in the GS system, and was voluntarily

reassigned to an EEO Specialist position, that was in the NSPS system.

Therefore, the Agency argues that it was not appropriate to compare

Complainant’s prior grade when he was in the GS system to the

grade equivalent of his NSPS position. The Agency also asserted that

Complainant’s pay was not affected so he was not harmed.

The instant appeal followed.

ANALYSIS AND FINDINGS

Upon review, the Commission finds that the Agency’s reason for

dismissing the complaint addresses the merits of the claim without

a proper investigation as required by the regulations. We find that

the Agency’s articulated reason for the action in dispute – that

Complainant voluntarily accepted a reassignment to the NSPS position –

goes to the merits of Complainant’s complaint, and is irrelevant to the

procedural issue of whether he has stated a viable claim under Title VII

and the 29 C.F.R. Part 1614 regulations. See Osborne v. Department of

the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United

States Postal Service, EEOC Request No. 05930220 (August 12, 1993);

Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642

(August 15, 1991). Complainant has alleged an injury or harm to a term,

condition, or privilege of employment for which there is a remedy.

See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (April

21, 1994).

Accordingly, the Agency's final decision dismissing Complainant's

complaint is REVERSED. The complaint is hereby remanded to the Agency for

further processing in accordance with this decision and the Order below.

ORDER (E0610)

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 (K0610)

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 (M0610)

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), at 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 (R0610)

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 (Z0610)

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

February 23, 2012

__________________

Date

1 The Agency also cited a basis of active duty military status. That

basis is not covered by the Commission’s regulations.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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