01995387
11-30-1999
Ronnie Dann, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Ronnie Dann, )
Complainant, )
)
v. ) Appeal No. 01995387
) Agency No. 99-63-0374
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
____________________________________)
DECISION
Complainant filed the instant appeal from the agency's decision dated May
25, 1999 dismissing complainant's complaint (claiming termination) on the
grounds that complainant failed to timely contact an EEO Counselor.<1>
The agency also dismissed the basis of retaliation for failing to state
a claim.
EEO Counselor Contact
The agency found that complainant claimed that complainant was
discriminated against on the bases of race, age, and in retaliation for
complaining about a rat infestation in the office when complainant was
forced to retire because of 18 separately listed incidents. The agency
found that complainant initially contacted an EEO Counselor on February
19, 1999, but that the most recent incident (performance rating)
occurred more than 45 days prior to the initial EEO Counselor contact,
in November 1998.
The Commission finds that the agency did not consider the date
complainant retired from the agency. Complainant is apparently claiming
that he was constructively discharged from the agency. Furthermore,
complainant may simply be asserting that the 18 incidents are merely
evidence in support of one claim that he was constructively discharged.
Alternatively, complainant may be attempting to pursue some or all of the
incidents as separate claims of discrimination. On appeal, complainant
argues that he submitted an application for the position of Research
Psychologist on August 15, 1998, but that he has not been notified if a
selection has yet been made. Therefore, if complainant is pursuing this
particular nonselection claim, then this nonselection claim may be timely.
The Commission shall remand the complaint so that the agency can meet
with complainant to clarify: (1) if complainant is claiming that he
was constructively discharged; (2) if the incidents cited by the agency
in its decision are separate claims or are merely evidence in support
of one claim that complainant was constructively discharged; and (3)
if complainant is attempting to raise an independent nonselection claim
regarding his application of August 15, 1998 for the position of Research
Psychologist. If complainant is pursuing the constructive discharge claim
and the nonselection claim regarding his application on August 15, 1998,
then the agency should supplement the record with evidence showing the
effective date of complainant's retirement and with evidence showing the
date complainant should have reasonably suspected complainant was not
selected for the position complainant applied for on August 15, 1998.
The agency shall reconsider whether the complaint needs to be redefined
and whether such a complaint was timely raised with an EEO Counselor.
Failure to State a Claim
The Commission finds that complainant is claiming that he was retaliated
against for protesting the rat infestation and for complaining to
the Regional Director about race and age discrimination. The portion
of complainant's claim of retaliation that is based on complainant's
protesting of the rat infestation was properly dismissed for failing to
state a claim pursuant to 64 Fed. Reg. 37,644, 37656 (to be codified as
and hereinafter cited as 29 C.F.R. �1614.107(a)(1)). Such an activity
does not involve opposition to practices made unlawful by statutes
enforced by the Commission and does not involve participation in any
stage of administrative or judicial proceedings under such statutes.
Therefore, such an activity is not protected under �1614.101(b).
Complainant's claim of retaliation based on complainant's opposition to
race and age discrimination, however, is protected under �1614.101(b),
and was therefore improperly dismissed for failure to state a claim.
The agency's decision dismissing the portion of the complaint claiming
that complainant was retaliated against for protesting the rat infestation
in the office is AFFIRMED. The agency's decision dismissing the remainder
of the complaint is VACATED and we REMAND the remainder of the complaint
to the agency for further processing in accordance with this decision
and applicable regulations.
ORDER
The agency shall contact complainant to clarify the complaint. The agency
shall clarify:
If complainant is alleging that he was constructively discharged.
If the incidents cited by the agency in its decision are separate claims
or are merely evidence in support of one claim that complainant was
constructively discharged.
If complainant is attempting to raise an independent nonselection
claim regarding his application on August 15, 1998 for the position of
Research Psychologist.
If complainant is pursuing the constructive discharge claim and the
nonselection claim regarding complainant's application on August 15, 1998,
then the agency should supplement the record with evidence showing the
effective date of complainant's retirement and with evidence showing the
date complainant should have reasonably suspected that he was not selected
for the position he applied for on August 15, 1998. The agency shall
reconsider whether the complaint needs to be redefined and whether the
matters raised in the complaint were timely raised with an EEO Counselor.
Within 90 days of the date this decision becomes final, the agency shall
issue a letter to complainant accepting the complaint for investigation
or issue a new decision dismissing the complaint. A copy of the letter
accepting the complaint or a copy of the decision dismissing the complaint
must be sent to the Compliance Officer as referenced herein.
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 (M1199)
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). 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
November 30, 1999
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 Assistant1On 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.