01997277
06-21-2000
Thomas J. Terrell, Jr., Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Thomas J. Terrell, Jr., )
Complainant, )
)
v. ) Appeal No. 01997277
) Agency No. 9V1M98129
F. Whitten Peters, )
Secretary, )
Department of the Air Force, )
Agency. )
____________________________________)
DECISION
On September 24, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by on August 31,
1999, pertaining to complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq.<1> Accordingly, the appeal is timely
(see 29 C.F.R. � 1614.402(a)), and is accepted in accordance with EEOC
Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for failure to state a claim and raising a claim which is now
moot.
BACKGROUND
On February 9, 1998, complainant contacted an EEO counselor alleging that
since October 1996, complainant acted as a supervisor but was not paid
as such and then, on January 5, 1998, complainant was informed that he
was not selected for a promotion to a supervisory position even though he
was the top ranked individual. On February 26, 1998, the EEO counselor
defined complainant's claims as (1) from October 1996 through January
1998, complainant acted as a supervisor but did not receive the higher pay
and (2) on January 5, 1998, complainant was not selected for a promotion.
Complainant filed his formal complaint dated March 13, 1998.
In its first FAD (FAD-1), the agency dismissed claim (1) of the complaint
finding that complainant failed to contact the EEO counselor in a timely
fashion.<2> Later, on August 25, 1999, the agency issued a second FAD
(FAD-2) dismissing claim (2). The agency found that no candidates
were referred for the supervisory position and that complainant's claim
was actually that he was not referred on a profile for the promotion.
FAD-2 found that the claim of non-referral was moot because no one was
referred and dismissed claim (2). The appeal of FAD-2 followed.
ANALYSIS AND FINDINGS
The agency dismissed complainant's claim that he was ranked first
on a profile for a position but was not selected for the position.
The agency states that complainant was incorrect in his complaint.
The agency found that complainant was not selected because he was not
referred for the position. The agency also stated that complainant's
claim was incorrect because no one was referred for the position and
that management was required to place an individual in the position
at issue through the Priority Placement Program. The FAD dismissed
complainant's claim because the complaint was based on the failure
to be referred and no personal harm had occurred against complainant.
Further, the agency argues that the issue of complainant's non-referral is
moot because no referrals were made. In dismissing the claim in such a
manner, the agency has determined that complainant's claim is not true.
This goes to the merits of the complaint and is irrelevant to the
procedural issue of whether complainant has stated a justiciable claim
under the regulations. See Ferrazzoli v. United States Postal Service,
EEOC Request No. 05910642 (August 15, 1991). Therefore, we find that the
agency has acted prematurely in addressing the merits of complainant's
claim without having first conducted a factual investigation.
Further, the Commission notes that when the agency initially defined
complainant's complaint, it fragmented his claim of age discrimination in
an incorrect, piecemeal manner. Rather than the claims listed in the FAD,
the complaint alleged that complainant was subject to discrimination from
October 1996 through January 1998, when he acted as a supervisor without
receiving the supervisor's pay because the agency promised to select him
for a supervisor's position when one became available. When the first
supervisory position became available, complainant was not selected for
the position, even though he was the top ranked individual. Therefore,
we remand the instant issue so that it shall be processed in accordance
with the Order below. Further, this issue shall be consolidated with
complainant's other claim which was remanded by the Commission in Terrell
v. Department of the Air Force, EEOC Appeal No. 05991076, pursuant to
64 Fed. Reg. 37,644, 37,661 (to be codified and hereinafter referred to
29 C.F.R. � 1614.606).
CONCLUSION
Accordingly, the decision of the agency was proper and is REVERSED and
REMANDED for further processing in accordance with this decision and
the proper regulations.
ORDER
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). Further, the agency shall
consolidate this instant claim with the remanded claim from EEOC
Request No. 05991076 pursuant to 29 C.F.R. � 1614.606. 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 an
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
June 21, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage
in the administrative process. Consequently, the Commission will
apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations,
as amended, may also be found at the Commission's website at
www.eeoc.gov.
2FAD-1 is the subject of Terrell v. Department of the Air Force, EEOC
Request No. 05991076.