Samuel Hiller, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionAug 21, 2007
0120072628 (E.E.O.C. Aug. 21, 2007)

0120072628

08-21-2007

Samuel Hiller, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.


Samuel Hiller,

Complainant,

v.

Dr. Donald C. Winter,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120072628

Agency No. 0764267008328

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated April 20, 2007, 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. and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29

U.S.C. � 621 et seq. Upon review, the Commission finds that complainant's

complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)

for failure to state a claim. In his complaint, complainant alleged that

he was subjected to discrimination on the bases of age (D.O.B. 01/19/42)

and reprisal for prior protected EEO activity under Title VII of the

Civil Rights Act of 1964 when he was notified in correspondence dated

January 22, 2007 of the agency's decision to remove him from his position

as Scientist, ND-1520-IV, effective January 31, 2007.

In its April 20, 2007 final decision, the agency determined that

complainant failed to state a claim of employment discrimination because

he retired from federal service effective January 30, 2007, before the

agency's removal action went into effect. Consequently, the agency

dismissed complainant's claim in accordance with EEOC Regulation 29

C.F.R. � 1614.107(a)(1).

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint 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, .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). In complainant's response

to the agency's final decision, he contends that the agency's removal

action constructively forced him to retire. Complainant states that

he chose to retire "to avoid the stigma of getting fired." Moreover,

complainant indicates that he retired before the agency's removal action

took effect in an attempt to keep his employment options option as a

way to mitigate any damages he suffered at the hands of the agency.

Upon review, the Commission finds that complainant has shown an injury

or harm to a term, condition, or privilege of employment for which there

is a remedy. See Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994). Specifically, we find that but for the

agency's decision to remove complainant effective January 31, 2007,

complainant would not have retired from federal service. In effect,

complainant is raising a claim of constructive discharge.

Alternatively, the agency's final decision indicates that complainant's

complaint could properly be dismissed in accordance with EEOC Regulation

29 C.F.R. � 1614.107(a)(5) because it alleges a proposal to take a

personnel action is discriminatory. Specifically, the agency concludes

that because the agency's action never took effect, it constitutes a

preliminary step to taking a personnel action. We disagree. The record

clearly indicates that the agency initially proposed complainant's

removal in correspondence dated December 8, 2006. Therein, complainant

was advised that the agency proposed that he be removed from his position

for his unacceptable performance. Thereafter, in a letter dated January

22, 2007 entitled "Notice of Decision on Proposed Removal," the agency

advised complainant of its decision to remove complainant from his

position as Scientist, ND-1520-IV, effective January 31, 2007.

The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides, in part,

that the agency shall dismiss a complaint that alleges that a proposal to

take a personnel action, or other preliminary step to taking a personnel

action, is discriminatory. We note that when a complaint is filed on a

proposed action, and the agency subsequently proceeds with the action,

the agency is considered to have merged with the proposal. See Siegel

v. Department of Veterans Affairs, EEOC Request No. 05960568 (October

10, 1977). Here, the agency acted on its proposal of December 8, 2006

when complainant was advised on January 22, 2007 that his removal would

be effective January 31, 2007. Complainant's retirement on January 30,

2007 does not alter the fact that the agency acted on its proposal to

remove complainant in its January Notice of Decision.

Accordingly, for the reasons set forth herein, the agency's final decision

dismissing complainant's complaint is reversed. The complaint is hereby

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

August 21, 2007

_______________

Date

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0120072628

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120072628