01992979
05-04-2001
Tommy R. Beck, Jr., Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Tommy R. Beck, Jr. v. U.S. Department of the Treasury
01992979
May 4, 2001
.
Tommy R. Beck, Jr.,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01992979
Agency No. 99-2044
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated January 22, 1999, dismissing his complaint of unlawful
employment discrimination brought pursuant to Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The Commission
accepts the appeal in accordance with 29 C.F.R. � 1614.405.
In his complaint, complainant claimed that the agency did not select
him for a certain position on the basis of reprisal, noting that he had
previously filed both a grievance and a Merits System Protection Board
(MSPB) appeal concerning a ten-day suspension.
In its decision, the agency dismissed the complaint on the grounds
of failure to state a claim. Specifically, the agency determined
that complainant's application for the position at issue was properly
reviewed under the selection process, so that he was not harmed when the
selecting official determined that he was not among the best qualified
applicants. The agency also determined that complainant was not harmed
because the vacancy announcement at issue was canceled due to a hiring
freeze, and that the offers made to all four selectees were rescinded.
The agency additionally determined that complainant had not engaged in
prior protected EEO activity, and so did not state an actionable claim
based on reprisal.
On appeal, in pertinent part, complainant argues that the vacancy
announcement was canceled because he contacted an EEO Counselor, and
further avers that he has not received a promotion since filing the
MSPB appeal. The agency submitted no response to complainant's appeal.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age, disabling condition, or in reprisal for prior
EEO activity. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal
sector case precedent has long defined an "aggrieved employee" as one
who suffers a present harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. Diaz v. Department
of the Air Force, EEOC Request No. 05931049(April 21, 1994).
Here, we find that the agency improperly addressed the merits of the claim
without the benefit of an investigation. The reasons behind the agency's
decision not to include complainant's application on the best qualified
list, as well as the reasons why it canceled the vacancy announcement,
are irrelevant to the procedural issue of whether complainant has set
forth a cognizable claim for which relief can be granted. Here, under
the legal standard in Diaz, we find that complainant was clearly rendered
�aggrieved� when he was not selected for the promotion at issue.
Moreover, we find that the agency provided no evidence to demonstrate
that complainant improperly filed his complaint on the basis of reprisal.
Complainant alleged that he engaged in prior protected activity when
he filed a grievance and an MSPB appeal. An agency is prohibited from
retaliating against an employee, who has engaged in protected activity.
Protected activity includes opposing unlawful employment discrimination,
participating in employment discrimination proceedings, or otherwise
asserting their rights under the laws enforced by the Commission.
The agency failed to present any evidence to show that complainant did not
engage in protected activity when he filed his grievance or MSPB appeal.
The Commission has long held that the agency bears the burden of providing
evidence or proof in support of its final decision. See Marshall
v. Department of the Navy, EEOC Request No. 05910685 (September 1991).
Accordingly, we find that the agency improperly dismissed the instant
complaint, and we REVERSE that determination, and REMAND the case to
the agency for further processing as set forth in the ORDER 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 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 (K0900)
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)(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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
May 4, 2001
__________________
Date