Thomas W. Edwards, ) 05970492 05970493

Equal Employment Opportunity CommissionMar 25, 1999
05970486 (E.E.O.C. Mar. 25, 1999)

05970486

03-25-1999

Thomas W. Edwards, ) 05970492 05970493


Thomas E. Parker, )

Thomas Mylett, )

Bobby E. Hooker, )

Gale D. Herriman, ) Request Nos. 05970486, 05970487

Warren Flowers, ) 05970488, 05970489

Samuel D. Gould, Sr., ) 05970490, 05970491

Thomas W. Edwards, ) 05970492 05970493

Kenneth L. Cobb, ) Appeal Nos. 01964690, 01964691

Appellants, ) 01964693, 01964694

) 01964696, 01964695

v. ) 01964697, 01964700

) Agency Nos. 96-00146-018, 96-00146-017

Richard J. Danzig, ) 96-00146-014, 96-00146-013

Secretary, ) 96-00146-011, 96-00146-020

Department of the Navy,) 96-00146-022, 96-00146-006

Agency. )

)

GRANTING OF REQUEST TO RECONSIDER

On February 14, 1997, the agency timely initiated requests to the

Equal Employment Opportunity Commission (Commission) to reconsider the

decisions in Parker v. Department of the Navy, EEOC Appeal No. 01964690

(January 13, 1997), Thomas Mylett v. Department of the Navy, EEOC Appeal

No. 01964691 (January 13, 1997), Bobby E. Hooker v. Department of the

Navy, EEOC Appeal No. 01964693 (January 13, 1995), Gale D. Herriman

v. Department of the Navy, EEOC Appeal No. 01964694 (January 13, 1997),

Warren Flowers v. Department of the Navy, EEOC Appeal No. 01964696

(January 13, 1995), Samuel D. Gould, Sr. v. Department of the Navy, EEOC

Appeal No. 01964695 (January 13, 1997), Thomas W. Edwards v. Department of

the Navy, EEOC Appeal No. 01964697 (January 13, 1997) and Kenneth L. Cobb

v. Department of the Navy, EEOC Appeal No. 01964700 (January 13, 1997).

The eight decisions were received by the agency on January 15, 1997.

EEOC regulations provide that the Commission may, in its discretion,

reconsider any previous decision. 29 C.F.R. �1614.407(a). The party

requesting reconsideration must submit written argument or evidence

that tends to establish one or more of the following three criteria:

new and material evidence is available that was not readily available

when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);

the previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy, 29

C.F.R. �1614.407(c)(2); and the decision is of such exceptional nature as

to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).

The agency's requests to reconsider are granted, in part.

ISSUE PRESENTED

Whether the eight previous decisions properly reversed a portion of

the eight final agency decisions that dismissed one allegation by the

appellants for failure to state a claim and another allegation by them

for failure to bring it to the attention of an EEO counselor prior to

filing their formal complaints.

BACKGROUND

Each appellant filed multiple individual complaints. Their issues and

the relevant procedural events concerning them are set forth in the

Commissions' previous decisions. At issue herein are two allegations

raised in Complaints #2 by all the appellants.

All the complaints at issue alleged age discrimination. Further,

the complaint by appellant Bobby E. Hooker alleged race (black)

discrimination.<1>

Allegation 1 of Complaints #2 alleged discrimination with regard

to the agency filling vacancies with candidates from the "Stopper

List." Final agency decisions for each of the appellants found this

allegation failed to state a claim because it was required by regulation

to fill vacancies with candidates from the "Stopper List." Each of the

appellants countered that the agency misused the Stopper List by placing

younger, less qualified employees into positions above him, and that this

constituted a "systemic discriminatory practice" that had an "adverse

impact on his protected class." Each of the appellants further alleged

that the agency has waited for qualified candidates to appear on the

Stopper List, rather than filling vacancies through the merit promotion

process. In reversing the agency's dismissals of this allegation, the

previous decisions observed in each case that the agency's dismissals

were based on a merits determination that it was required by regulation

to select candidates from the Stopper List. All the previous decisions

found that this was irrelevant to the procedural issue of whether the

appellants stated a justiciable claim under the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. (ADEA).

The previous decisions also found that this allegation appeared to raise

the theory of disparate impact discrimination.

In its requests for reconsideration, the agency now argues that allegation

1 should be dismissed because an employee cannot state a claim under

the ADEA based on disparate impact discrimination. To support this the

agency cites federal court cases.

Allegation 2 of Complaints #2 alleged that the Fire Chief stated "younger

guys should be doing the work rather than the older guys." On appeal,

each of the appellants characterized this allegation as constituting

evidence of direct discrimination which demonstrated the motivation

behind the agency's decision to act against him.

Final agency decisions for each of the appellants dismissed this

allegation for failure to bring it to the attention of the EEO counselor

prior to filing a complaint of discrimination. EEOC Regulation 29

C.F.R. �1614.107(b) provides, in pertinent part, that an agency shall

dismiss a complaint, or portion thereof, that raises a matter that has

not been brought to the attention of an EEO Counselor and is not like or

related to one. In reversing the agency's dismissals, all the previous

decisions stated that during counseling each appellant alleged he was

subjected to a hostile work environment with respect to actions taken

by the Fire Chief, and that this allegation appeared to constitute an

incident of alleged harassment. Accordingly, the previous decisions

found that the agency improperly dismissed this allegation because it

was related to a matter that was brought to the attention of the EEO

counselor, i.e., harassment by the Fire Chief.

With regard to each of the eight previous decisions, the agency

filed separate requests for reconsideration, all of which contain

identical arguments. The agency argues, in part, that the appellants

framed allegation 2 as one of "direct discrimination," not harassment.

The appellants did not reply to the agency's requests.

ANALYSIS AND FINDINGS

In order to prompt the Commission to reconsider the previous decisions,

the agency must present evidence or argument that satisfies one of the

criteria of 29 C.F.R. �1614.407. It has done so with regard to allegation

2, but not allegation 1.

With regard to allegation 1, the Commission has ruled that a

complainant can state a claim of discrimination using the disparate

impact theory under the ADEA. Witkowsky v. Department of the Interior,

EEOC Petition No. 03970122 (May 20, 1997). Moreover, several federal

courts have affirmed the applicability of the disparate impact theory

to ADEA cases. See, District Counsel 37 v. New York City Department

of Parks & Recreation, 113 F.3d 347, 351 (2d Cir. 1997); Smith v. City

of Des Moines, 99 F.3d 1466, 1469-70 (8th Cir. 1996) and EEOC v. Local

350, Plumbers & Pipefitters, 998 F.2d 641, 648 n.2 (9th Cir. 1993).

The agency's request for reconsideration of allegation 1 is denied.

Moreover, a reading of allegation 1, as described here and in the

previous decisions, reveals it raises the theories of disparate impact

and disparate treatment discrimination. Accordingly, the agency shall

investigate allegation 1 under both theories.

Upon a second review of the record, the Commission finds that the agency

incorrectly characterized allegation 2 as a live allegation. As stated

by the agency, the appellants did not characterize this matter as one

of harassment, and a review of their complaints and the counselor's

reports reveals that they did not contend the Fire Chief repeatedly

made derogatory or ridiculing remarks and/or physical gestures to or

about older workers. Moreover, each of the appellants' descriptions on

appeal of the matter labeled as allegation 2 demonstrate it was raised

as evidence to support their allegations of age discrimination, and

not as a separate live allegation. Accordingly, the agency's request

for the Commission to reconsider the previous decisions with regard to

allegation 2 is granted. The agency is advised, however, that a complete

investigation of the appellants' allegations of age discrimination would

include an investigation of whether the Fire Chief made the above remark,

since this could go to whether there was discriminatory animus based

on age.

Finally, it is not clear whether the appellants intended to raise

the basis of reprisal discrimination in their second complaints.

On remand and prior to the investigation, the agency shall ask each of

the appellants to clarify if they are alleging reprisal discrimination

in their second complaints, and to investigate that basis for any

appellant who answers in the affirmative. Sanchez v. Standard Brands,

Inc., 431 F.2d 455, 462-466 (5th Cir. 1970). The agency is reminded

that appellant Bobby E. Hooker alleged race (black) discrimination in

his second complaint, and to investigate that basis with regard to him.

The orders in the previous decisions have been revised to reflect the

matters addressed herein.

CONCLUSION

After a review of the agency's requests for reconsideration, the

previous decisions, and all the records, the Commission finds that the

agency's requests meet the criteria of 29 C.F.R. �1613.407(c), in part.

The Commission grants the agency's requests for reconsideration with

regard to allegation 2 of the appellants' Complaints #2, and denies it

with regard to allegation 1 of their second complaints. The decisions of

the Commission in EEOC Appeal Nos. 01964690, 01964691, 01964693, 01964694,

01964696, 01964695, 01964697, and 01964700 are modified. The portion

of the agency decisions which dismissed allegation 1 are reversed, and

the portion of its decisions which reversed allegation 2 are affirmed.

This is not a decision on the merits of the appellants' complaints.

ORDER

The agency is ORDERED to process allegation 1 in the appellants'

complaints at issue herein in accordance with 29 C.F.R. �1614.108.<2>

Prior to investigating this allegation, the agency shall ask each

appellant in writing whether he is also alleging reprisal discrimination

with regard to allegation 1. For appellants who answer in the

affirmative, the agency shall also investigate the basis of reprisal

discrimination.

With regard to appellant Bobby E. Hooker, the agency shall investigate

allegation 6 of his Complaint 1.<3>

The agency shall acknowledge to the appellants that it has received

allegation 1 within 30 calendar days after the agency receives this

decision. It shall acknowledge to appellant Bobby E. Hooker that it has

received allegation 6 of his Complaint 1 within 30 calendar days of the

date the agency receives this decision. The agency shall issue to each

of the appellants a copy of their investigative file and also shall

notify the appellants of the appropriate rights within 150 calendar

days of the date the agency receives this decision, unless the matter

is otherwise resolved prior to that time. If the appellants request a

final decision without a hearing, the agency shall issue final decisions

within 60 days of receipt of the appellants requests.

A copy of the agency's letter of acknowledgment to appellants, a copy

of the letter by the agency to the appellants soliciting whether they

are raising reprisal discrimination with regard to allegation 1 of

their second complaints, 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.

RIGHT TO FILE A CIVIL ACTION (Q0993)

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 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:

March 25, 1999

Date

Frances

M.

Hart

Executive Officer

Executive Secretariat1There is some

evidence on the complaint forms that

individuals may be raising reprisal

(EEO activity) discrimination.

The agency shall address this matter,

as ordered below.

2The investigation of allegation 1 shall include the disparate impact

and disparate treatment theories of discrimination. Also, with regard

to the appellant Bobby E. Hooker, the investigation shall include the

basis of race (black) discrimination.

3The previous decision regarding appellant Bobby E. Hooker ordered this

additional action, which was not challenged by the agency. This order

incorporates the language of that previous order.