05971028
03-25-1999
Joseph Muccitelli, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Joseph Muccitelli v. Department of the Navy
05971028
March 25, 1999
Joseph Muccitelli, )
Appellant, )
) Request No. 05971028
v. ) Appeal No. 01965155
) Agency No. 96-44544-002
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
__________________________________)
GRANTING OF REQUEST FOR RECONSIDERATION
On August 26, 1997, Joseph Muccitelli (hereinafter referred to as
the appellant) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision in
Joseph Muccitelli v. John H. Dalton, Secretary, Department of the Navy,
EEOC Appeal No. 01965155 (July 17, 1997), received by his attorney
on July 28, 1997. EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons that follow, appellant's
request is GRANTED.
ISSUE PRESENTED
Whether the previous decision was correct when it affirmed the agency's
dismissal of appellant's complaint.
BACKGROUND
Prior to June 1995, appellant worked as a Head Cashier at the Navy
Exchange (NEX) in Gaeta, Italy. According to appellant, in June 1995,
he was promised a flex-time position with the agency if he took an early
retirement. After retiring, appellant was unable to obtain a position.
Therefore, in a letter dated July 31, 1995, he asked that the agency
withdraw his request for early retirement. Appellant wanted to return to
his old position, which was apparently still vacant. On September 27,
1995, appellant received a letter from the Personnel Director informing
him that he was ineligible for employment because he met the Italian
definition of being an "ordinary resident." The practical effect of this
designation was that appellant was precluded from obtaining employment
with the United States government. Appellant contacted the Personnel
Director in order to contest his designation. According to appellant,
he was told that the matter would be corrected. Additionally, we note
that over the next five-months, appellant was repeatedly assured by the
Personnel Director that the matter was being rectified. In February 1996,
appellant maintained that he discovered that the Personnel Director,
contrary to her assurances, had in fact attempted to fill his position
with younger less qualified women. On February 13, 1996, appellant
contacted an EEO counselor. On April 27, 1996, he filed a formal
complaint of discrimination.
As stated by the previous decision, the agency defined appellant's
complaint as follows:
1. Appellant was not allowed to withdraw his retirement and subsequently
be reinstated to his old position as a Head Cashier.
2. Appellant's written request for reinstatement was not answered by
the Personnel Director.
3. Appellant was not offered a flex-time position by the Personnel
Director.
4. NEX management tried to recruit a Filipino woman for the Head Cashier
position at the time appellant requested reinstatement.
5. Appellant was found to be an "ordinary resident" and "dual national,"
thus not employable in U.S. designated appropriated and non-appropriated
fund positions.
The agency, without any analysis, dismissed appellant's complaint
on the grounds that he sought EEO counseling in an untimely manner.
Additionally, the agency found that appellant was alleging that a
proposed agency action was discriminatory. The previous decision,
in affirming the agency's dismissal of appellant's complaint, found
that, at the very least, he should have suspected discrimination by
September 27, 1995 when he received a letter informing him that he had
been classified as an "ordinary resident." Since the previous decision
found that appellant contacted the EEO counselor in an untimely manner,
the agency's alternate ground for dismissal was not addressed.
In his reconsideration request (RTR), appellant argued that the previous
decision erred by finding that the September 27, 1995 notification was an
event that should have triggered a reasonable suspicion of discrimination.
According to appellant, the United States government, during this
period, provided similar notices to over 400 people in Italy.<1> The
United States government, stated appellant, implemented a new policy
of not hiring, and dismissing when possible, individuals designated
as "dual nationals and ordinary residents." Appellant reiterated his
contention that he only discovered he was being discriminated against in
February 1996, when he spoke to a staff member in the Personnel office.
According to appellant, he was told that the agency sought to have him
designated a "dual national." Apparently, a "dual national" designation
would have had more far reaching consequences for appellant, than merely
being designated an "ordinary resident."<2>
The agency did not respond to appellant's RTR.
ANALYSIS AND FINDINGS
The Commission finds that appellant's RTR meets the criterion of 29
C.F.R. �1614.407(c)(2). It is therefore the decision of the Commission
to grant appellant's request. Contrary to the previous decision,
we find no persuasive evidence that appellant should have suspected
discrimination in September 1995. Although appellant was told that he
met the definition of being an "ordinary resident" and therefore could
not be re-employed, we find no persuasive evidence that this information,
in itself, should have caused appellant to suspect that the agency's
actions could have been motivated by an intent to discriminate. We note
in this regard that the Personnel Director, over the next five months,
assured appellant that the matter would be resolved.<3> Consequently,
we find that the time limitation period should be tolled until February
1996 when appellant obtained information that led him to conclude that
he was being discriminated against.
We also disagree with the agency's alternate ground for dismissing
appellant's complaint, i.e., he was alleging that a proposed agency
action was discriminatory.<4> According to appellant, he was denied
a flex-position and re-employment because of his age, sex and national
origin. Specifically, he maintained that the agency, in order to hire
less qualified female workers, designated him an "ordinary resident."
Because of the change in his designation, appellant was rendered
ineligible for agency employment; therefore, he was aggrieved by the
agency's action.<5> He was not merely speculating that some future
action would have a discriminatory affect on him.
CONCLUSION
After a review of appellant's request to reconsider, the previous
decision, and the entire record, the Commission finds that his request
meets the criterion of 29 C.F.R. �1614.407(c)(2). It is therefore the
decision of the Commission to GRANT the request. The agency's final
decision and the decision in EEOC Appeal No. 01965155 (July 17, 1997)
are hereby REVERSED. There is no further right of administrative appeal
on a decision of the Commission on a Request to Reconsider. The agency
will comply with the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
March 25, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1By analogy, appellant argues that receiving notice of an "ordinary
resident" classification was "[n]o more indicative per se of
discrimination than, say, [receiving] an IRS audit."
2According to appellant, "dual nationals" were a problem because they
came under the "employee-friendly" labor laws of Italy.
3Since we do not find persuasive evidence that appellant knew or
should have known that agency's actions were motivated by an intent to
discriminate, we distinquish this situation from one where a complainant
has such knowledge, but seeks to informally resolve the matter.
4EEOC Regulation 29 C.F.R. �1614.107(d) provides that the agency shall
dismiss a complaint or a portion of a complaint that alleges that a
proposal to take a personnel action is discriminatory.
5Even if the agency never actually hired a less qualified female employee,
appellant would still be aggrieved because he was prevented from obtaining
employment with the agency.