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.