Alfred L. Paige, Complainant,v.Gale A. Norton, Secretary, Department of Interior, Agency.

Equal Employment Opportunity CommissionNov 16, 2004
01A45350 (E.E.O.C. Nov. 16, 2004)

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