01980338
04-06-2000
Raymond L. Harshman, Complainant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.
Raymond L. Harshman v. Small Business Administration
01980338
April 6, 2000
Raymond L. Harshman, )
Complainant, )
)
v. ) Appeal No. 01980338
) Agency Nos. 04-96-545
Aida Alvarez, ) 05-96-549
Administrator, ) 06-96-552
Small Business Administration, ) 03-97-598
Agency. )
____________________________________)
DECISION
Complainant filed an appeal from two separate agency decisions dated
September 18, 1997 (dismissing 04-96-545, 05-96-549, and 06-96-552)
and October 6, 1997 (dismissing a portion of 03-97-598).<1>
I. September 18, 1997 Decision (04-96-545, 05-96-549, and 06-96-552)
In the September 18, 1997 decision the agency combined three complaints
and defined the claims as follows:
1. Complainant's directed reassignment in March 1995 to Oklahoma was
made in order to get complainant to retire.
2. Complainant's failure to achieve a "5" rating and a $5,000 bonus in
his FY95 performance evaluation in December 1995 was retaliation for
accepting the directed reassignment to Oklahoma.
3. In September 1995, when applying for an SES District Director position
in Miami, complainant's application was not rated high enough to put
complainant on the list of candidates.
4. The agency's applicant evaluation standards are intentionally biased
against older, white males.
5. The Deputy Administrator and the Counselor to the Administrator
preselected one or more Hispanic candidates who ultimately did not apply
for the position which forced the agency to select the 57 year old white
male incumbent for the position.
6. Beginning in 1994, the Administrator, the Deputy Administrator, and
other high ranking officials used a regression analysis to determine
the efficiency of each agency district office as a pretense to
cloak discriminatory acts against complainant, including the directed
reassignment to Oklahoma City, denial of a performance bonus for FY94,
reducing the performance bonus complainant was entitled to in FY95, and
excluding complainant from being interviewed for the Miami SES District
Director's position.
Claims 1, 3, and 5
The Commission finds that the agency's decision dated dismissing claims
1, 3, and 5 on the grounds that complainant failed to timely contact
an EEO Counselor is proper pursuant to the regulation set forth at 64
Fed. Reg. 37,644, 37656 (to be codified and hereinafter cited as 29
C.F.R. � 1614.107(a)(2)). Because of our disposition we do not address
whether the agency also properly dismissed claim 5 on other grounds.
Claim 2
The agency dismissed claim 2 for failure to state a claim. The agency
found that complainant failed to claim that he engaged in any protected
activity. The agency also found that complainant failed to identify any
harm to his employment position as a result of the alleged retaliation.
On appeal, complainant argues that in claim 2, he is alleging that he was
denied a "5" rating and a $5,000 bonus in FY95. Complainant also argues
that claim 2 is also based on race, color, sex, and age discrimination.
The Commission finds that complainant was aggrieved in claim 2 when he
was allegedly denied a "5" rating and a $5,000 bonus. Furthermore, we
agree with complainant that claim 2 is based on race, color, sex, and age
discrimination in addition to retaliation. Therefore, we find that claim
2 states a claim with regard to complainant's claim of race, color, sex,
and age discrimination. The Commission finds that the agency properly
dismissed the basis of retaliation from claim 2 for failing to state a
claim. 64 Fed. Reg. 37,644, 37656 (to be codified and hereinafter cited as
29 C.F.R. � 1614.107(a)(1)). Complainant failed to show in his complaint,
or on appeal, that he engaged in any protected activity as defined in
� 1614.101(b). The Commission agrees with the agency that complainant
has failed to show how accepting a directed reassignment amounts to
opposing any practice made unlawful by Title VII, the Age Discrimination
in Employment Act, the Equal Pay Act, or the Rehabilitation Act.
Claim 4
The agency dismissed claim 4 for falure to state a claim. The Commission
finds that although complainant may have been aggrieved by the alleged
discriminatory applicant evaluation standards, complainant has not listed
any harm separate from that already alleged in the instant complaints.
For instance, complainant alleged that he was not selected for the SES
Director position in claim 3. The alleged discriminatory applicant
evaluation standards are certainly relevant to claim 3, but does
not state a harm independent of the nonselection at issue in claim 3.
Therefore, we find that claim 4 is properly dismissed for failing to state
a claim for the reasons provided in the Commission's instant decision.
29 C.F.R. � 1614.107(a)(1). To the extent that complainant is attempting
to raise, in claim 4, a claim that he was not selected for the position
in claim 3 (or claim 2 concerning the directed reassignment), we find
that claim 4 is also properly dismissed for stating the same claim
that is pending before or has been decided by the agency or Commission.
29 C.F.R. � 1614.107(a)(1). Because of our disposition we do not address
the agency's other reason for dismissing claim 4.
Claim 6
On appeal complainant argues that the agency never made a regression
analysis, but instead "said it did in order to have a pretext upon which
it discriminated against [complainant]." The Commission finds that claim
6 was properly dismissed on the grounds that it stated the same claim
as raised by complainant in other claims in the complaints described in
the September 18, 1997 decision. 29 C.F.R. � 1614.107(a)(1). Claim 6
is simply evidence concerning the incidents of discrimination raised
elsewhere (claims 1, 2, and 3) in the complaints.
To the extent that complainant is only alleging harm from the purported
use of the regression analysis, the Commission finds that complainant
is not independently harmed by such a claim. Therefore, claim 6 is
also properly dismissed for failure to state a claim. 29 C.F.R. �
1614.107(a)(1). To the extent that complainant is attempting to allege
he was harmed by the denial of a performance bonus for FY94, we find
that this portion of the claim was properly dismissed by the agency for
untimely EEO Counselor contact pursuant to � 1614.107(a)(2). Because of
our disposition we do not address whether the remainder of claim 6 was
properly dismissed by the agency for untimely EEO Counselor contact.
II. October 6, 1997 Decision (03-97-598)
The record shows that the instant appeal for 03-97-598 was settled
in March 2000 by the parties. Therefore, the instant appeal from the
October 6, 1997 decision is DISMISSED.
CONCLUSION
The agency's decision dismissing, from 04-96-545, 05-96-549, and
06-96-552, claim 1, the basis of retaliation from claim 2, and claims
3 - 6 is AFFIRMED. The agency's decision dismissing, from 04-96-545,
05-96-549, and 06-96-552, the bases of race, color, sex, and age
discrimination from claim 2 is REVERSED and we REMAND this portion of
claim 2 to the agency for further processing in accordance with this
decision and applicable regulations.
The appeal from the agency's decision in 03-97-598 is DISMISSED.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 an
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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
April 6, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.