0120064499
01-16-2007
Nicholas T. Fleischmann, Complainant, v. Robert M. Gates, Secretary, Department of Defense, Agency.
Nicholas T. Fleischmann,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
Agency.
Appeal No. 01200644991
Agency No. 06JCS010
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 7, 2006, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of age (D.O.B. 03/20/40) when he was subjected to comments
and was harassed regarding his age.
The agency dismissed complainant's complaint for untimely EEO Counselor
contact, under 29 C.F.R. � 1614.107(a)(2). It characterized complaint's
issue in the following manner: "you claim discrimination based on
age (DOB: 03/20/1940), when Joint Staff management officials refused
to upgrade your position and promote you from Technical Information
Specialist, GS-1412-13 to Technical Information Specialist, GS-1412-14/15,
based on your requests that began in October 1996. In addition, you
maintain that from January 2005 to June 2005, your supervisor and
other J-7 officials repeatedly made negative statements about your age
and length of service. You also claim that from January 2005 to June
2005, your supervisor also made references that your performance was
unsatisfactory due to your advanced age." As complainant contacted
an EEO Counselor on September 12, 2005, the agency found that this was
beyond the 45-day time frame contained in the regulations.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
We find that the agency mischaracterized complainant's formal complaint.
On his complaint form complainant wrote "[d]uring 2005, I was often
treated very negatively by [MO-1] in situations or contexts in which
there were hints that my performance was unsatisfactory due to my
relatively advanced age. Though nothing was said like 'you're too
old' that insinuation was applied to me, but not younger persons."
As background information, complainant had provided details regarding his
repeated requests for an upgrade in his position, dating back to 1996,
but most recently requested in January 2005.
According to the EEO Counselor's report, complainant stated "within
the past year he was given an unsatisfactory appraisal rating, denied a
monetary performance award, and placed on a Performance Improvement Plan
(PIP). He said he believes all of these actions were unjustified and was
simply designed to support denial of his position upgrade and promotion
to GS 14/15. He added that because he is eligible for retirement, he
believes the adverse actions taken by management were further designed to
encourage him to retire." In support of his claim of age discrimination,
complainant provided examples in his appeal statement such as being told
in September 2005, that what was needed on a project was a "fresher, more
objective understanding of the issues involved" and that his "thinking
was not up-to-date, and that the project called for younger persons with
new ideas." He was also told regarding the project in question that
the project manager "wanted to update the instruction without having it
worked on by Pentagon dinosaurs." He claimed that "I was told numerous
times that, with my years of service, I should consider retirement to
make way for younger personnel, including military personnel on active
duty and recently retired military personnel. I was told that I was slow
and deficient in understanding orders, compared to younger employees."
Complainant also stated that "I was ordered to report for a public
ceremony presenting me with a thirty-year certificate of service. I said I
did not want a public ceremony to recognize my length of service. At that
time I had almost forty years of service and had received a thirty-year
certificate ten years earlier, but my division chief, who reprimanded
me for declining a public ceremony, was in such haste to publicize my
length of service, he did not even bother to verify the number of years I
had served." Finally, in June 2005, MO-1 "suddenly gave me a forty-year
certificate and said I now ought to be able to retire."
In light of these allegations, as complainant is claiming ongoing
harassment and has provided dates as late as September 22, 2005, we find
that complainant's complaint should be remanded for an investigation
into whether or not complainant was subjected to ongoing comments and
was harassed regarding his age during 2005. Complainant may provide
as background information his requests to be upgraded to a GS-14/15,
however, this potential claim was properly found to be untimely.
Accordingly, the agency's decision dismissing complainant's complaint
is REVERSED. The complaint, as defined in this decision, is REMANDED for
further processing in accordance with this decision and 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
January 16, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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0120064499
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120064499