01997002
01-19-2001
Roldan R. Covarrubias, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Roldan R. Covarrubias v. Department of the Army
01997002
01-19-01
.
Roldan R. Covarrubias,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01997002
Agency No. 09907J0750
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final agency
decision, 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. Upon review, the Commission finds that
complainant's complaint was improperly dismissed pursuant to 29 C.F.R. �
1614.107(a)(1).<1>
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for failure to state a claim.
BACKGROUND
Complainant filed a formal complaint on July 7, 1999 in which he alleged
discrimination on the bases of race (Hispanic) and sex (male) when
management, since April 26, 1999, delayed his selection for the position
of GS-344-12, Computer Specialist, in the System Management Division of
the Directorate for Information Management, Red River Army Depot. In its
final decision, the agency dismissed complainant's complaint, concluding
that complainant was not �aggrieved� because he had not suffered loss
or harm with respect to a term, condition or privilege of employment.
It is from that decision that complainant appeals.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(1) requires an agency to dismiss
a complaint, or portion thereof, that fails to state a claim. An agency
shall accept a complaint from any aggrieved employee or applicant for
employment who believes that he or she has been discriminated against by
that agency because of race, color, religion, sex, national origin, age or
disabling condition. 29 C.F.R. �1614.103; �1614.106(a). The Commission's
federal sector case precedent has long defined an "aggrieved employee"
as one who suffers a present harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21,
1994).
Complainant argues that, upon receiving notification that the selection
panel had chosen him for the Computer Specialist position, he expected
to transition to his new position, with all of its terms, conditions and
privileges, by the beginning of the next pay period. Complainant further
asserts that, in preparation for his new position, complainant signed
a statement verifying that he was not related to any Systems Management
Division employees and that he had the Secret Security clearance required
by the position. On May 3, 1999, when complainant had not yet been
placed in his new position, complainant inquired into the status of his
promotion and allegedly was told that some ��issues' had come up� with
regard to the position when an EEO Manager stated that she wanted to
fill the vacant position with a female applicant. Upon review of the
record, the Commission finds that under the circumstances of this case,
where complainant is claiming that the agency attempted to manipulate
the selection process to avoid selecting a male, complainant states
a claim of unlawful employment discrimination. The agency's alleged
conduct relates to a term, condition, or privilege of employment.
For the aforementioned reasons, the agency's decision to dismiss the
complaint on the grounds of failure to state a claim was improper.
CONCLUSION
Accordingly, the decision of the agency is REVERSED and REMANDED for
further processing in accordance with this decision and the proper
regulations. The parties are advised that this decision is not a decision
on the merits of complainant's complaint. The agency shall comply with
the Commission's Order set forth 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 (K0900)
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)(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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
___01-19-01_______________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.