01A23339
06-18-2003
Milton W. Collier, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Milton W. Collier v. Department of the Air Force
01A23339
June 18, 2003
.
Milton W. Collier,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A23339
Agency No. AUOQ020008
DECISION
Complainant appeals to the Commission from the agency's decision dated
May 10, 2002, dismissing his complaint of discrimination as moot pursuant
to 29 C.F.R. � 1614.107(a)(5). In a complaint dated March 22, 2002,
complainant alleged that he was subjected to discrimination on the bases
of race (African-American) and reprisal for prior EEO activity when:
Complainant was issued a memorandum on February 7, 2002, entitled,
�Notice of Realignment of Housing Management Assistant Position.�
Complainant was informed in that memorandum that his position as Housing
Management Assistant, NF 1173-NF III would be abolished, effective March
10, 2002.
Complainant was informed in that memorandum that he would be offered the
position of Lodging Maintenance Technician, NF-II-1601-II, effectively
a downgrade.
Agencies must dismiss complaints that are moot or allege that a proposal
to take a personnel action or other preliminary step to taking a
personnel action is discriminatory. 29 C.F.R. � 1614.107(a)(5). In its
final decision, the agency characterizes the February 7, 2002 Notice of
Realignment as a proposed action. We disagree. There is no language in
that notice which describes the lodging realignment as a proposed action.
Rather, phrases like, �[complainant's] position is being abolished,� and,
�the effective date of this action will be 10 Mar 02,� clearly reflect
an intent to take a definite action, as opposed to a mere proposal.
Nevertheless, the Commission agrees with the agency that the complaint
is moot. On April 10, 2002, complainant received a memorandum from
the Human Resources Officer entitled, �Revision of Notice of Lodging
Realignment.� This second memorandum stated:
The purpose of this memorandum is to notify you that the original Notice
of Lodging Realignment you received is being revised. While Lodging is
still moving forward with its realignment and your position is still being
updated, it will remain an NF-1173-III Housing Management Assistant. This
action no longer constitutes a business-based action (BBA). Therefore,
severance pay, the re-employment priority list and the DoD Interchange
Agreement mentioned in the original memorandum are no longer applicable.
The April 10, 2002 memorandum clearly and unequivocally establishes that
complainant's position was not abolished, and that complainant retained
his grade. The memorandum from the Human Resources Officer is therefore
an interim event that completely and irrevocably eradicated the effects
of the February 7, 2002 Notice of Lodging Realignment. County of Los
Angeles v. Davis, 440 U.S. 625, 631 (1979); Williams v. United States
Postal Service, EEOC Request No. 05A00290 (February 15, 2002).
Accordingly, the agency's final decision dismissing complainant's
complaint 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
June 18, 2003
__________________
Date