0120121116
04-23-2012
Raymond McKelvy, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Raymond McKelvy,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120121116
Agency No. 116700400796
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 28, 2011, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for employment.
Complainant was a member of a class action pursued in federal court alleging discrimination on the basis of race (African American) in non-selections at the Marine Corps Logistics Base in Albany, Georgia or Blount Island, Florida between 2000 - 2010.1 The class action was settled and African American individuals who had applied positions in these locations during the relevant time period were permitted to file individual EEO complaints under the 29 C.F.R. Part 1614 process if they had not otherwise been offered and accepted payment from the settlement agreement. The 45-day limitation period was waived for these complaints.
On June 13, 2011, Complainant filed an individual EEO complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and color (Black) when he was not selected for a number of positions during the relevant period at the Marine Corps Logistics Base in Albany, Georgia.
The Agency dismissed Complainant's race claim, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency reasoned that Complainant, in order to be considered for the merit-staffing positions at issue, had to have status that conferred eligibility, such as being a current federal employee, a veteran, or have a disability. Since in his resume Complainant did not claim a status that conferred such eligibility, the Agency concluded that he could not plausibly state a claim of entitlement to relief. Accordingly, his claim was dismissed for failure to state a valid claim.
With regard to Complainant's color claim, the Agency dismissed it for untimely EEO counselor contact, noting that the waiver of timeliness that was part of the class action settlement agreement only applied to race, not color, claims.
The instant appeal followed.
ANALYSIS AND FINDINGS
Upon review, the Commission finds that the Agency's reason for dismissing Complainant's race claim addresses the merits of that claim without a proper investigation as required by the regulations. We find that the Agency's articulated reason for the action in dispute - that Complainant's resume did not claim a status that conferred eligibility for consideration for a merit-staffing position - goes to the merits of Complainant's complaint, and is irrelevant to the procedural issue of whether he has stated a viable claim under Title VII and the 29 C.F.R. Part 1614 regulations. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991). Complainant has alleged an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
However, we affirm the Agency's dismissal of Complainant's color claim for untimely EEO counselor contact. The class action settlement waiver of this time limitation only applied to race claims.
Accordingly, the Agency's final decision dismissing Complainant's race claim is REVERSED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded race claim in accordance with 29 C.F.R. � 1614.108 et seq. 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
April 23, 2012
__________________
Date
1 Bill Robinson et al. v. Raymond E. Mabus, Jr., Civil Action No. 1:02-CV-94-2 (WLS), U.S. District Court for the Middle District of Georgia.
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0120121116
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121116