Scott P. Watts, Appellant,v.Janet Reno, Attorney General, Department of Justice, (Immigration and Naturalization Service), Agency.

Equal Employment Opportunity CommissionMar 2, 1999
01982176 (E.E.O.C. Mar. 2, 1999)

01982176

03-02-1999

Scott P. Watts, Appellant, v. Janet Reno, Attorney General, Department of Justice, (Immigration and Naturalization Service), Agency.


Scott P. Watts v. Department of Justice

01982176

March 2, 1999

Scott P. Watts, )

Appellant, )

)

v. ) Appeal No. 01982176

) Agency No. I-96-8062

Janet Reno, )

Attorney General, )

Department of Justice, )

(Immigration and Naturalization )

Service), )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination,

in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791

et seq. The final agency decision was received by appellant on December

29, 1997. The appeal was postmarked January 21, 1998. Accordingly,

the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in

accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint for failure to state a claim.

BACKGROUND

Appellant contacted an EEO counselor on August 6, 1996, regarding

allegations of discrimination. Specifically, appellant alleged that he

was discriminated against when he was informed on July 3, 1996 that he

was not qualified for the position of Border Patrol Agent (Trainee).

Informal efforts to resolve appellant's concerns were unsuccessful.

Accordingly, on October 10, 1996, appellant filed a formal complaint

alleging that he was the victim of unlawful employment discrimination

on the basis of mental disability (unspecified).

On December 22, 1997, the agency issued a final decision dismissing

appellant's complaint for failure to state a claim. Specifically, the

agency determined that the decision that appellant was not medically

suitable for the Border Patrol position was made by the Office of

Personnel Management (OPM) and not by the agency. The agency concluded

that appellant's complaint of discrimination failed to state a claim

upon which relief could be granted.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency

may dismiss a complaint which fails to state a claim pursuant to

29 C.F.R. �1614.103. For employees and applicants for employment,

EEOC Regulation 29 C.F.R. �1614.103 provides that individual and

class complaints of employment discrimination prohibited by Title VII

(discrimination on the bases of race, color, religion, sex and national

origin), the ADEA (discrimination on the basis of age when the aggrieved

individual is at least 40 years of age) and the Rehabilitation Act

(discrimination on the basis of disability) shall be processed in

accordance with Part 1614 of the EEOC Regulations.

To establish standing as an "aggrieved employee" within the context

of 29 C.F.R. �1614.103, appellant must allege, first of all, that

she has been injured in fact. Hackett v. McGuire Bros., 445 F.2d 447

(3rd Cir. 1971). Specifically, appellant must allege some direct harm

which affects a term, condition, or privilege of employment. See Riden

v. Department of the Treasury, EEOC Request No. 05970314 (October 2,

1998). The only proper questions in determining whether an allegation is

within the purview of the EEO process are whether the complainant is an

aggrieved employee and whether he has alleged employment discrimination

covered by the EEO statutes. An employee is "aggrieved" if he has suffered

direct and personal deprivation at the hands of the employer. See Hobson

v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990).

Here, appellant is an applicant for employment with the Immigration

and Naturalization Service (INS), covered by Part 1614 of the EEOC

Regulations. He has alleged that the agency engaged in discriminatory

conduct when it failed to hire him for a position as a Border Patrol

Agent (Trainee) based on a mental disability. The agency asserts that

the decision that appellant's medical condition rendered him ineligible

for the position was made by OPM and not by the agency. Therefore,

the agency concluded that appellant's claim of discrimination properly

lies with OPM. We disagree. The record herein indicates that the

agency, i.e. the INS elected not to hire appellant based on the finding

of OPM. We determine that the agency's decision discusses the merits

of appellant's complaint allegations rather than whether appellant's

allegation states a claim of employment discrimination. The fact remains,

the agency itself made the employment decision not to hire appellant

for the position. In this instance, appellant has raised a cognizable

claim of discrimination which should be investigated by the agency.

See Cervantes v. United States Postal Service, EEOC Request No. 05930303

(November 12, 1993)

CONCLUSION

Accordingly, the agency's decision dismissing appellant's complaint for

failure to state a claim is REVERSED. The complaint is REMANDED for

processing in accordance with the Order below.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

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 appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant 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 (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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 appellant files a civil action, the administrative

processing of the complaint, including any petition for enforcement,

will be terminated. See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (MO795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a

timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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 (R0993)

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. 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 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 (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:

Mar 2, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations