01A45350
11-16-2004
Alfred L. Paige, Complainant, v. Gale A. Norton, Secretary, Department of Interior, Agency.
Alfred L. Paige v. Department of Interior
01A45350
11-16-04
.
Alfred L. Paige,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of Interior,
Agency.
Appeal No. 01A45350
Agency No. LLM-04-026
DECISION
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. In his complaint, complainant alleged that he was
subjected to discrimination on the bases of race (African-American),
color (Black), age (DOB 11/4/1950), sex (male), and reprisal (prior EEO
activity) when:
On April 13, 2004, he was not considered for the position of Law
Enforcement Ranger, GS-1801-5/7/9, advertised under Vacancy Announcement
Number CA-04-014GM-MP, and
On April 28, 2004, he was not considered for the position of Outdoor
Recreation Planner, GS-0023-07/11, advertised under Vacancy Announcement
Number CA-04-0039DO-MP.
In its final decision, the agency dismissed the complaint for failure
to state a claim. Specifically, the agency determined that complainant
did not successfully apply for the positions as he failed to follow the
instructions in the vacancy announcements rendering his applications
unacceptable. We find that the agency improperly addressed the merits
of the claim in a procedural decision.
An aggrieved employee who believes that he or she has been discriminated
against by the agency on the basis of race, color, religion, sex,
national origin, age or disability may file a complaint. While the
regulations and Title VII fail to define the term "aggrieved employee",
it is generally interpreted by the courts and the Commission to mean an
employee who alleges that he has suffered a personal loss or harm with
respect to a term, condition, or privilege of employment. See Trafficante
v. Metropolitan Life Insurance Co., 409 U.S. (1972); McCants v. United
States Postal Service, EEOC Request No. 05900643 (August 30, 1990).
In determining whether an employee is aggrieved, the merits of the
complaint allegations are irrelevant to whether the complainant has
articulated a justiciable Title VII complaint. See McCants, supra. To
file a justiciable complaint, it is only necessary that a complainant
allege a belief that he has been subjected to adverse action because
of his protected class. See Zalucky v. United States Postal Service,
EEOC Request No. 05870508 (April 14, 1988).
Here, whether complainant successfully applied for the positions at issue
is irrelevant to the procedural issue of whether he states a cognizable
claim for which relief can be granted. See Ferrazzoli v. U.S. Postal
Service, EEOC Request No. 05910642 (August 15, 1991). We find that
complainant has identified a cognizable harm (that he was not considered
for positions for which he applied) on bases protected by the Commission
(e.g., race, color, age, sex, and reprisal for prior EEO activity).
Therefore, we find that complainant has stated an actionable claim of
unlawful discrimination.
Accordingly, we find that the agency improperly dismissed the instant
complainant on the grounds of failure to state a claim, and we REVERSE
that determination, and REMAND the complaint 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 (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
_____11-16-04_____________
Date