01991002
03-17-2000
Willie F. Toomer, Jr., Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Willie F. Toomer, Jr. v. Department of the Air Force
01991002
March 17, 2000
Willie F. Toomer, Jr., )
Complainant, )
)
v. ) Appeal No. 01991002
) Agency No. AL900990170
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
____________________________________)
DECISION
On November 12, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on
October 16, 1998, pertaining to his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1> In his complaint, complainant
alleged that he was subjected to discrimination on the bases of race
(African-American) and color (black). The agency defined the complaint
as alleging harm when:
Complainant's tour overseas was not extended; and
Complainant's four prior EEO complaints were improperly processed.
The agency dismissed claim (1) for alleging harm from a proposed action.
Specifically, the agency found that complainant merely received notice
that his overseas tour would end August 1, 1998, but that the tour had
not expired when he filed his complaint. Further, the agency found
that complainant failed to state a claim because he was aware that his
overseas tour would not extend beyond five years, and acknowledged that
his tour would end on August 1, 1998, by signing a document to that
effect on April 27, 1998. The agency dismissed claim (2) for failure
to state a claim, because it concerns the processing of other claims.
In response to the appeal, the agency argued that the extension of an
overseas tour is not an entitlement, and therefore, its denial did not
render complainant aggrieved. Further, the agency asserted that claim
(2) stems from settlement discussions of complainant's other pending
EEO complaints.
In his formal complaint, dated July 12, 1998, complainant alleged that
he was not granted an end-of-tour extension while white employees were
granted extensions to work overseas for more than five years. He also
claimed that improper pressure was exerted when he was told that he
could receive an extension if he dropped his four pending complaints
of discrimination.
The record also contains several documents concerning extensions for
complainant's overseas tour. Complainant requested an extension by letter
dated July 16, 1998. Further, complainant's supervisor requested that
complainant's tour be extended twice, by letter dated June 25, 1998, and
July 21, 1998. The record also includes a notification from the Deputy
Chief of Services, dated April 27, 1998, informing complainant that
his tour would expire on August 1, 1998, and noting that complainant's
position did "not warrant an extension." Finally, the agency provided
an undated, unsigned document identified as "documents provided by CPO,"
presumably the Civilian Personnel Office, stating that "All extension[s]
. . . beyond five years of overseas employment not in a Career Program
position, are only [to] be approved by the Wing Commander, therefore [the
Deputy Chief of Services] is not authorized to approve extensions. . . ."
The document further stated that "we no longer have any record of employee
no longer in our employment."
We note that when a complaint is filed on a proposed action and the agency
subsequently proceeds with the action, the action is considered to have
merged with the proposal. See Siegel v. Department of Veterans Affairs,
EEOC Request No. 05960568 (October 10, 1997); Charles v. Department of the
Treasury, EEOC Request No. 05910190 (February 25, 1991). Complainant's
overseas tour ended August 1, 1998, prior to the issuance of the FAD.
Further, the civilian personnel office appears to confirm that it had no
further record that complainant was employed by the agency. Therefore,
the Commission finds that the proposal to end complainant's overseas
tour merged with its expiration, and dismissal for alleging harm from
a proposed action was improper.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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
22, 1994).
Claim (1) clearly states a claim. The decision whether complainant's
tour should be extended affects a term, condition, or privilege of
complainant's employment. Further, the agency's arguments on appeal
concern whether the grant of an extension is an "entitlement" and whether
the agency followed its internal regulations by denying complainant's
extension request. These matters address the merits of the claim
without a proper investigation as required by the regulations, and are
irrelevant to the procedural issue of whether he has stated a justiciable
claim under Title VII. See Osborne v. Department of the Treasury, EEOC
Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service,
EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States
Postal Service, EEOC Request No. 05910642 (August 15, 1991).
In claim (2), complainant did not claim harm from the improper processing
of a prior complaint. However, he is alleging harm from the agency's
offer to settle the prior complaints. "Settlement negotiations,
including any statements or proposals, are to be treated as confidential
and privileged to facilitate a candid interchange to settle disputes
informally." Harris v. Department of the Navy, EEOC Request No. 05941002
(March 23, 1995). To allow a new complaint based on a settlement offer
would defeat this purpose. See Millea v. Department of Veterans Affairs,
EEOC Request No. 05980235 (May 21, 1998); Montague v. Department of the
Army, EEOC Request No. 05920231 (May 2, 1992); see also Green v. United
States Postal Service, EEOC Request No. 05980207 (June 25, 1998) (agency's
withdrawal of an offer made in settlement not actionable). Therefore, the
agency's dismissal of claim (2) for failure to state a claim was proper.
CONCLUSION
Accordingly, the agency's dismissal of claim (1) is REVERSED, and the
claim is REMANDED for further investigation. The agency's dismissal of
claim (2) is AFFIRMED.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 an
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (T1199)
This decision affirms the agency's final decision/action 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 WITHIN NINETY (90) CALENDAR
DAYS from the date that you receive this decision 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. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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:
March 17, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.