0120073423_with_covershee
10-10-2007
Kenneth E. Rogers, Jr., Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Kenneth E. Rogers, Jr.,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120073423
Agency No. DON 07-00024-01459
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision (FAD) dated June 26, 2007, dismissing his 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.
The FAD defined the complaint as alleging that complainant was
discriminated against based on his age (born in 1942) when since 1990,
he was denied the opportunity to have his position as General Engineer,
GS-13, upgraded to GS-14, pay band 3. The FAD dismissed the complaint for
failure to timely contact an EEO counselor. It reasoned that complainant
did not contact an EEO counselor until February 28, 2007, beyond the 45
day time limit to initiate EEO contact.
After receiving the FAD, complainant sent the agency a letter dated July
6, 2007 indicating it misdefined his complaint. Complainant wrote that
the "true issue" was discriminatory wording/intent in an agency Execution
Plan dated February 9, 2007. He added that he was not pursuing his
supervisor failing to upgrade his position. This supervisor took over
that role in January 2005. Complainant continued that "the only issue
I was filing a formal complaint over..." was the wording and intent of
the agency Execution Plan.
The language at issue in the Execution Plan was as follows:
Critical - plan for the replacement of the incumbent in the existing
GS-801-13 engineering billet. Incumbent may retire in January or April
2007. Position should be upgraded to GS-14 grade in order to obtain
qualified candidates that are willing to work in the Capitol area.
Increase of grade level to GS-14 is warranted due to the duties and
responsibilities and the high degree of knowledge and experience required.
Individual must be expert in the L&H field, technically competent, and
excel in all governing requirements. Individual is speaking of retiring
either in early January or April 2007 (65/41+ years).
The language was referring to complainant's age, years of service, and
comments about retiring. Complainant explained that the language noting
his age and years of service in justifying replacing him with a GS-14
upon his retirement showed intent to discriminate based on his age.
On August 24, 2007, the agency issued another FAD in effect rescinding
the June 26, 2007 FAD. The second FAD recounted complainant's letter that
the first FAD misdefined his complaint because he was not challenging the
failure to upgrade his position. It redefined complainant's complaint as
alleging discrimination based on age when the agency issued its Execution
Plan of February 9, 2007, with the language quoted above.
The August 24, 2007, FAD dismissed the complaint for failure to state
a claim. 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 or disabling condition.
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). The FAD found
that the language was not sufficient to rise to the level of harm, i.e.,
an actionable claim.
On appeal, complainant writes that his complaint relates to staffing plans
after his retirement. While complainant could argue that the language in
the Execution Plan evidences age discrimination regarding his position
not being upgraded, he has made it clear that he is not pursuing the
failure to upgrade matter. The language itself, without the failure
to upgrade claim, does not rise to the level of actionable harassment.
Agency staffing plans after complainant retires do not state a claim
because this does not impact complainant.
According, the August 24, 2007, FAD is affirmed.
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 (S0900)
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. 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. If you
file a request to reconsider and also file a civil action, 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
October 10, 2007
__________________
Date
2
0120073423
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120073423