01981231
01-08-1999
Martin Johnson, Sr., Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Martin Johnson, Sr. v. Department of the Treasury
01981231
January 8, 1999
Martin Johnson, Sr., )
Appellant, )
)
v. ) Appeal No. 01981231
) Agency No. 97-2263
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. and the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. �621 et seq. The final agency
decision was received by appellant on October 30, 1997. The appeal
was postmarked November 22, 1997. Accordingly, the appeal is timely
(see 29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC
Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint as untimely and for failure to state a claim.
BACKGROUND
The record of the instant case indicates that appellant, a current
agency employee, applied and was interviewed for a position as an Ink
Maker with the Bureau of Engraving and Printing. The position described
by Vacancy Announcement No.97-0008-SRP opened on February 7, 1997 and
closed on February 18, 1997. During his interview, appellant expressed
his opinion that the agency had improperly classified the position
and asked the interviewing panel whether the classification would be
corrected. Appellant was advised that no change in the classification
of the position would be made. Thereafter, appellant asked that his
application be withdrawn from consideration for the position.
Thereafter, on June 3, 1997 appellant contacted an EEO counselor regarding
allegations of discrimination. Specifically, appellant alleged that he
was discriminated against when (1) the agency failed to select him for the
vacant Ink Maker position; and (2) the agency failed to adopt a suggestion
made by appellant in December 1994. The record indicates that by letter
dated July 29, 1997 appellant was asked to clarify whether allegation (1)
of his complaint challenged the agency's classification of the position
or, whether he was alleging discrimination in his non-selection for
the position. The agency also advised appellant that if allegation
(1) alleged that the agency improperly classified the position, he was
required to provided an explanation for not seeking counseling within
forty-five (45) days of the closing date of the announcement, or by
February 18, 1997. Appellant indicated that allegation (1) concerned
the agency's non-selection of him for the vacant position.
Informal efforts to resolve appellant's concerns were unsuccessful.
Accordingly, on July 13, 1997, appellant filed a formal complaint
alleging that he was the victim of unlawful employment discrimination
on the bases of race (black), and age (7-14-41).
The record further indicates that on September 8, 1997 the agency issued
an initial decision (FAD-1) accepting for investigation, allegation (1) of
appellant's complaint, but dismissing allegation (2) as untimely. FAD-1
indicated that allegation (1) concerned his non-selection for promotion.
During the agency's investigation of allegation (1) appellant provided an
affidavit in which he stated that he knew he would not be chosen to fill
the vacant position once he requested that his application be withdrawn.
As a result of its investigation of allegation (1), the agency issued a
decision on October 22, 1997 (FAD-2), dismissing appellant's complaint.
FAD-2 determined that appellant's complaint failed to state a claim and
that appellant failed to demonstrate that he was an aggrieved employee
within the meaning of EEOC Regulations. The agency also found that
allegation (1) was raised with the EEO counselor in an untimely manner.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.103(a) covers individual and class
complaints of employment discrimination and retaliation prohibited by
Title VII (discrimination on the basis of race, color, religion, sex and
national origin), the ADEA (discrimination on the basis of age when the
aggrieved individual is at least 40 years of age), the Rehabilitation
Act (discrimination on the basis of disability) and the Equal Pay Act
(sex-based wage discrimination). Complaints alleging retaliation are
also considered to be complaints of discrimination. Specifically,
appellant must allege some direct harm which affects a term, condition,
or privilege of employment. See Riden v. Department of the Treasury,
EEOC Request No. 05970314 (October 2, 1998).
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint that fails to state a claim under 29 C.F.R. �1614.103
or �1614.106(a). A review of allegation (1) in appellant's complaint
fails to indicate that he suffered an injury or a harm as a result of
the agency's actions. To be aggrieved under Title VII, an appellant must
allege and show that he/she has suffered an injury in fact. See Hackett
v. McGuire Bros., 445 F.2d 447 (3rd Cir. 1971).
In the instant case, appellant alleges that the agency discriminated
against him when it did not select him for a vacant position. The record
herein, specifically appellant's investigative affidavit, reveals that
appellant removed himself from consideration for the position when
he requested that his application be withdrawn. By his own actions,
appellant ensured his non-selection for the position. With respect to
allegation (1) we find that appellant has failed to demonstrate that he
suffered a direct and personal deprivation at the hands of the agency.
To the extent that allegation (1) concerns the classification of the
vacancy, we agree with the agency that appellant contacted the counselor
in an untimely manner as he should have had a reasonable suspicion of
discrimination at the time of the vacancy announcement. The Commission
further finds that allegation (2) concerning the agency's failure to
adopt a suggestion made by appellant in December of 1994 was untimely
raised with an EEO counselor. Appellant has not shown that he only
developed a reasonable suspicion of discrimination sometime during the
45 day period preceding his counselor contact.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint is
hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a
timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 (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:
January 8, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations