05980404
04-12-2001
Peter F. Dow, Complainant, v. Steven R. Cohen, Acting Director, Office of Personnel Management, Agency.
Peter F. Dow v. Office of Personnel Management
05980404
April 12, 2001
.
Peter F. Dow,
Complainant,
v.
Steven R. Cohen,
Acting Director,
Office of Personnel Management,
Agency.
Request No. 05980404
Appeal No. 01955087
Agency No. 95-27
DECISION ON REQUEST FOR RECONSIDERATION
On March 2, 1998, Peter F. Dow (complainant) timely initiated a request to
the Equal Employment Opportunity Commission (the Commission) to reconsider
the decision in Peter F. Dow v. Office of Personnel Management, EEOC
Appeal No. 01955087 (January 22, 1998). EEOC regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. � 1614.405(b). The party requesting
reconsideration must submit written argument or evidence which tends
to establish one or more of the following two criteria: the appellate
decision involved a clearly erroneous interpretation of material fact
or law; or the decision will have a substantial impact on the policies,
practices or operations of the agency. Id. For the reasons set forth
herein, complainant's request is granted.
BACKGROUND
Complainant filed a complaint in which he alleged discrimination on the
bases of race (Caucasian), color (White), sex (male) and national origin
(Anglo-Saxon) when the agency failed to inform him of the existence of
a handbook entitled �How to Become an Administrative Law Judge (ALJ)�
(handbook), which provided tips and instructions on how to compete
in the ALJ examination. Complainant alleged that the agency did not
provide him with an opportunity to obtain a copy of this handbook
when he participated in the ALJ exam. Complainant also alleged that
the placement of a Social Security Administration's (SSA) ALJ as the
lead interviewer during his Panel Interview exacerbated the impact of
discrimination in his case because the handbook was produced by the SSA .
The agency dismissed the first issue for failure to state a claim and
the second for failure to contact an EEO Counselor.
In the previous decision, the Commission affirmed the agency's dismissal
of the first issue, noting that complainant did not allege that applicants
who received the handbook received an ALJ position or that he would
have received an ALJ position had he been given a copy of the handbook.
The previous decision concluded that complainant failed to demonstrate
any concrete personal harm resulting from the allegedly discriminatory
distribution of the handbook.
The previous decision declined to resolve the dispute over whether
or not complainant informed the EEO Counselor that he was concerned
with the presence of the SSA ALJ on the panel that interviewed him.
Instead, the decision found that the issue failed to state a claim
because complainant did not allege any injury resulting from the SSA
ALJ's placement on the interview panel.
On request for reconsideration, complainant argues that the prior
decision involved an erroneous interpretation of material fact or law.<1>
Specifically, complainant alleges that he did suffer a personal injury
when he was not provided with the handbook and not told of its existence
because this lessened his chances of scoring well on the ALJ examination
as compared to the female and minority applications who were provided with
the handbook. Complainant also argues that the previous decision is
inconsistent with an earlier decision involving the same issue, citing
Markuns v. Office of Personnel Management, EEOC Appeal No. 01965969
(June 23, 1997).
After a careful review of the entire record, we find that complainant's
complaint was improperly fragmented by the agency. Correctly defined,
complainant's claim is that, due to his race/color, sex, and national
origin, he was denied an equal opportunity to compete for a position as
an ALJ when the agency failed to provide him with a copy of the handbook
and placed an SSA ALJ on the panel that interviewed him. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO-MD-110), as revised, November 9, 1999, at 5-5 (agencies must avoid
fragmentation of EEO complaints).
Commission precedent holds that 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; � 1614.106(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. See Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994).
In Markuns, the complainant alleged that he was discriminated against when
the agency denied him material information regarding the agency's method
for evaluating ALJ applicants, such as that contained in the handbook.
The Commission, noting that the complaint raised the issue of whether
complainant was discriminatorily denied a handbook, found that the
complaint stated a claim. The previous decision in the case at hand
offered no grounds upon which it could be distinguished from Markuns.
The agency attempts to offer such a distinction in its response to
complainant's request for reconsideration, noting that in Markuns, the
complainant was �denied� the handbook, whereas in the case at hand, the
agency �did not provide� complainant with the opportunity to obtain it.
This minor difference in language does not alter the fact that both
complainant and Mr. Markuns alleged that they were not given the handbook
due to protected bases and that this negatively affected their chances
of becoming ALJs.
Although the previous decision found that complainant failed to allege an
injury resulting from this alleged action, it is clear from the record
that complainant alleged that the agency's failure to provide him with
this assistance, along with the placement of an SSA ALJ on the interview
panel, lessened his chances for selection. We find, in agreement with
Markuns, that this states a claim under our regulations.
CONCLUSION
After a review of complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
complainant's request meets the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to GRANT the complainant's request.
The decision of the Commission in Appeal No. 01955087 (January 22, 1998)
and the final agency decision are REVERSED. The complaint is REMANDED
to the agency for further processing in accordance with the ORDER below
and applicable regulations. There is no further right of administrative
appeal on the decision of the Commission on a Request to Reconsider.
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 (K0900)
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)(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 29 C.F.R. � 1614.409.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
April 12, 2001
Date
1 Complainant also alleged that new and material evidence is available
that was not reasonably available when the previous decision was
issued. Under the revised regulations, this is no longer one of the
criteria on which a request for reconsideration may be granted.