Saeed U. Din, Complainant,v.Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionDec 3, 2003
01A30637_r (E.E.O.C. Dec. 3, 2003)

01A30637_r

12-03-2003

Saeed U. Din, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.


Saeed U. Din v. Department of the Navy

01A30637

December 3, 2003

.

Saeed U. Din,

Complainant,

v.

Hansford T. Johnson,

Acting Secretary,

Department of the Navy,

Agency.

Appeal No. 01A30637

Agency Nos. DON-01-69217-004, DON-02-00024-005,

DON-02-47039-001, DON-02-67597-003

DECISION

Complainant filed a formal EEO complaint dated March 7, 2001, wherein he

claimed that the agency discriminated against him on the bases of his

religion (Islam), national origin (Pakistan), and in reprisal for his

previous EEO activity under Title VII when his applications for employment

through an appointment under �Schedule A� were not given due consideration

with respect to vacancy announcement numbers: (1) CAP/OCR/0560/00/009LTM;

(2) CAP/OCR/0343/00/015/LTM; (3) CAP/00B/0547/TF; and (4) HRSCC-00-0520.

On April 23, 2001, the agency accepted the complaint for investigation.

On July 13, 2001, the agency advised complainant that the acceptance

letter was rescinded because the formal complaint had been accepted

by the wrong agency organization. Complainant was advised that the

agency would attempt to identify the activities that were responsible

for the relevant nonselections. Subsequently, complainant amended

his complaint to include four additional vacancy announcements:

CAP/OCR/301/00/010/LTM; CAP/OCR/0344/00/016/LTM; CAP/OCR//0561/00/017/LTM;

and CAP/OCR/0029/00/067/LTM. Complainant claimed that the agency had

failed to consider him for appointment under �Schedule B�.

On January 11, 2002, the agency accepted for investigation in Agency

No. DON-01-69217-004 the claims involving positions that had been filled.

The agency dismissed on the grounds of failure to state a claim those

claims addressing vacancy announcements that did not result in a

filled position or which did not result in any identified positions.

Subsequently, complainant stated in a letter to the agency that there

were several positions or vacancies in addition to those previously

raised for which he might have been qualified and referred.

By letter dated March 7, 2002, the agency's Naval Sea Systems Command

activity accepted for investigation a claim involving one vacancy

announcement number, CAP/00B/0547/TF, a nonselection for a Budget

Analyst, GS-560-7/9/11 position. This complaint was assigned case

number DON-02-00024-005.

On April 26, 2002, complainant filed a formal complaint with the Chief of

Naval Operations activity wherein he claimed that he had been subjected

to consistent and systematic discrimination on the afore stated bases.

This complaint was assigned case number DON-02-47039-001.

On June 1, 2002, complainant filed a formal complaint with the

Washington Navy Yard activity wherein he claimed discrimination on the

afore stated bases with regard to not being referred or interviewed

for numerous positions for which he had applied through the agency's

computerized database RESUMIX. This complainant was assigned case

number DON-02-67597-003.

In an undated decision, the agency issued a final action wherein it

consolidated the complaints and dismissed all of them pursuant to 29

C.F.R. � 1614.107(a)(9) on the grounds of misuse of the EEO process.

The agency stated that it had identified at least 26 separate hiring

actions within nine separate activities that fall within the complaints.

The agency stated that the relevant actions involved decisions to fill

or not fill a position, or to cancel an action. The agency determined

that complainant's claims lack specificity. The agency noted that

complainant vaguely claimed that he was being denied due and proper

consideration for employment and that he was the victim of a conspiracy.

The agency stated that complainant claimed in very broad and unclear terms

that the agency's use of the RESUMIX computerized application process

has resulted in discrimination against him. The agency noted that

its computer job application database does not maintain data on a job

applicant's religion, national origin, or prior EEO complaint activity

and therefore an activity seeking a list of qualified applicants would

be unable to utilize the RESUMIX system to eliminate applicants based

on these criteria. In reaching its decision that further processing of

the complaints would overburden the EEO complaints process, the agency

noted that complainant objected to excluding any hiring action that did

not result in a filled position and that he also raised the specter of

additional, unspecified complaints about additional vacancies for which

he may have been qualified. The agency stated that it ran a computer

query on October 22, 2001, to identify potential hiring actions and

that resulted in the 26 identified individual actions. According to

the agency, in order to identify all of the hiring actions for which

complainant may have been qualified and referred, it would have to run

a computer query each day and this would represent an unduly burdensome

requirement upon its personnel system and EEO resources.

On appeal, complainant argues that he has not misused the EEO process,

but rather the agency did not fulfill its responsibility to notify

him as to how his applications had been rated, whether he had been

referred for vacancies, and it failed to inform him of his nonselections.

Complainant requests an investigation of at least the 26 hiring actions

identified by the agency.

In response, the agency asserts that complainant has set forth multiple

vague and identical allegations in numerous complaints. The agency argues

that complainant has not identified specific hiring actions and that there

are positions at issue for which complainant admits he is not qualified.

The agency states that complainant has refused to withdraw complaints

about position announcements which were cancelled and positions which

were not filled. The agency maintains that complainant has overburdened

the EEO process through a pattern of filing meritless complaints against

several agencies and then pursuing appeals.

EEOC Regulations provide for dismissal of complaints that are part of a

�clear pattern of misuse of the EEO process for a purpose other than the

prevention and elimination of employment discrimination.� 29 C.F.R. �

1614.107(a)(9). A clear pattern of misuse of the EEO process requires:

Evidence of multiple complaint filings; and

Allegations that are similar or identical, lack specificity or involve

matters previously resolved; or

Evidence of circumventing other administrative processes, retaliating

against the agency's in-house administrative processes or overburdening

the EEO complaint system.

In the instant case, the agency consolidated complainant's four

complaints and dismissed them in their entirety on the grounds of misuse

of the EEO process.<1> The agency noted that complainant's claims lack

specificity and that they constituted an unduly burdensome requirement

on its personnel system and its EEO resources. We find that the agency

has not established that the matters at issue reflect a misuse of the

EEO process. Although the agency claims that complainant's claims lack

specificity, the agency nonetheless was able to identify from the vacancy

announcements cited by complainant, 26 hiring actions within nine of

its activities. Complainant's reference to systematic discrimination

against him appears vague to the agency, but we find that the claim of

systematic discrimination is not particularly unclear in light of the fact

that complainant consistently states that the discrimination against him

is reflected in the agency's failure to consider, refer, and hire him

for positions for which he believes he is qualified. We note that the

agency states that its RESUMIX system does not indicate an applicant's

religion, national origin, and prior EEO activity and therefore officials

making selection decisions will not have knowledge of these criteria.

This may be a factor that the agency can utilize in addressing the merits

of these complaints, but we do not find this factor to be sufficient to

support a dismissal for misuse of the EEO process.

As for the agency's concern that its personnel office and EEO system

will be overwhelmed by these complaints, we find that the agency has

not made a persuasive argument. Complainant indicates on appeal that

it will be sufficient if the agency conducts an investigation of the 26

identified incidents. Complainant will not be able to add new claims

to an accepted complaint unless an amendment is proper pursuant to 29

C.F.R. � 1614.106(d). We also are not persuaded by the agency's position

that complainant is misusing the EEO process by alleging discrimination

with regard to positions that were not filled and vacancy announcements

that were cancelled. It is conceivable that discriminatory motives can

be involved when the decision is made against filling a position or to

cancel a vacancy announcement.

The Commission wishes to inform complainant, however, that an agency

is generally not obligated to identify specific positions for which

complainant is claiming discriminatory non-selection. Any failure

in the future by complainant to identify specific positions for

which he was allegedly discriminatorily not selected may possibly be

appropriately dismissed for failure to state a claim pursuant to 29

C.F.R. � 1614.107(a)(1).

Accordingly, the agency's dismissal of the consolidated complaint on

the grounds of misuse of the EEO process was improper and is REVERSED.

The consolidated complaint is REMANDED to the agency 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

December 3, 2003

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1The agency explicitly states in its decision and on appeal that the

only grounds for dismissal of any of the claims in the consolidated

complaints is misuse of the EEO process.