Appellant, v. Dick Cheney, Secretary, Department of Defense, (Defense Logistics Agency), Agency. Request No. 05910837 Appeal No. 01911513 Agency No. XL-91-006 January 31, 1992 GRANTING OF REQUEST TO REOPEN INTRODUCTION On August 23, 1991, the Department of Defense (Defense Logistics Agency) (hereinafter referred to as the agency) initiated a request to the Equal Employment Opportunity Commission (EEOC) to reopen and reconsider the decision in Appellant v. Dick Cheney, Secretary, Department of Defense, (Defense Logistics Agency), EEOC Appeal No. 01911513 (July 22, 1991). EEOC Regulations provide that the Commissioners may, in their discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish one or more of the three criteria prescribed by 29 C.F.R. 1613.235(b). The agency bases its request on 29 C.F.R. 1613.235(b)(2) (the previous decision involved an erroneous interpretation of law or regulation or misapplication of established policy) and 29 C.F.R. 1613.235(b)(3) (the previous decision is of such exceptional nature as to have effects beyond the actual case at hand). For the reasons set forth herein, the agency's request is granted. ISSUE PRESENTED The issue presented is whether the Commission's previous decision properly vacated the agency's final decision to reject appellant's complaint on the grounds that appellant failed to seek EEO counseling in a timely manner and that appellant failed to file his formal EEO complaint in a timely manner. BACKGROUND On January 16, 1991, appellant filed a formal EEO complaint which alleged that he had been subjected to discrimination because of religion (Jewish), sex (male), and age (undesignated) when (1) his Supervisor made derogatory statements to the Chief of Classification regarding appellant's ability to perform GS-11 work and (2) the Chief of Classification wrote the statements down as a 'mind jogger.' In setting forth his requested remedial relief, appellant alleged that he had unsuccessfully sought a promotion to the GS-11 level on several occasions and, therefore, he requested a promotion to the GS-11 level retroactive to April 1988. In its final decision of April 3, 1991, the agency, using both appellant's formal complaint and the EEO Counselor's report, identified appellant's allegations as whether he was subjected to discrimination because of his race (Caucasian), religion (Jewish), sex (male), and age (over 40) when (1) derogatory statements were made by his Supervisor to the Chief of Classification, i.e., he did not think appellant was capable of GS-11 work, and (2) the Personnel Staffing Division denied receiving an application from appellant for JOA #135-90. The agency rejected both allegations for failure to state a claim since appellant failed to show how he was harmed by the alleged incidents. Further, the agency rejected allegation (1) on the grounds that appellant failed to contact an EEO Counselor in a timely manner because appellant failed to identify the specific date of incident other than that it occurred prior to his contact in November 1989. In addition, the agency found that appellant failed to file his formal complaint within 15 days of his final interview with the EEO Counselor. On appeal, appellant stated that he first saw the written 'mind jogger' regarding the derogatory statement by his Supervisor on November 3, 1989, and that he contacted an EEO Counselor several days later. Consequently, appellant claimed that his EEO contact was timely. Further, appellant stated that he never received a Notice of Final Interview from the EEO Counselor. The record contains a Notice of Final Interview dated November 21, 1989; however, there is no indication that the Notice was received by appellant. The record also contains a sworn statement dated January 25, 1991, by the EEO Counselor stating that appellant received the Notice of Final Interview; however, the date of appellant's receipt is undisclosed. The previous decision of July 22, 1991, found that appellant timely contacted an EEO Counselor regarding allegation (1) that his Supervisor made derogatory comments about him to the Chief of Classification. Noting that the EEO Counselor's Report failed to indicate the date of appellant's first contact, the previous decision accepted appellant's assertion that he first became aware of the derogatory comments on November 3, 1989, and that he contacted the EEO Counselor within several days of learning about the comments. Concerning the timeliness of appellant's formal complaint, the previous decision found that the agency failed to contradict appellant's assertion that he never received the Notice of Final Interview and, therefore, found appellant's complaint to have been timely filed. Further, the previous decision found that the agency failed to address appellant's allegation (2) that the Chief of Classification wrote down appellant's Supervisor's derogatory comments as a 'mind jogger,' and interpreted the agency's failure as an implied rejection. The previous decision determined that appellant did not receive EEO Counseling on allegation (2) and remanded the allegation for the agency to provide appellant with an opportunity to seek counseling. Finally, the previous decision found that appellant had not raised an allegation regarding JOA #135-90 in his formal complaint and, therefore, found the agency's rejection of that allegation to be improper. In its request to reopen, the agency contends that the Commission's previous decision involved an erroneous interpretation of law or regulation, or a misapplication of established policy, and was of an exceptional nature having effects beyond the actual case at hand. First, the agency notes that the decision failed to address the rejection of appellant's allegations for failing to state a claim under 29 C.F.R. 1613.215(a)(1). The agency contends that appellant's Supervisor's opinion of appellant's capability to perform work at a higher grade is not, in itself, actionable. The agency quotes from a letter dated December 12, 1989, responding to a Congressman's inquiries on behalf of appellant, wherein it is noted that a desk audit of appellant's position was on-going to determine if it was properly classified at the GS-9 level. The letter indicates that the Chief of Classification's memorandum mentioning the Supervisor's comments had been destroyed. Accordingly, the agency asserts that the allegations also appear to be moot. Regarding the timeliness of appellant's formal complaint, the agency contends that it is appellant's burden to show that he was timely. According to the agency, appellant's assertion that he did not receive the Notice of Final Interview was rebutted by the EEO Counselor's sworn statement that appellant did receive it. Finally, regarding the promotion allegation, the agency notes that appellant raised this allegation with the EEO Counselor and in his formal complaint through his requested remedial relief. The agency indicates that appellant specifically identified JOA #135-90 in one of his letters to his Congressman. Since there is no record of appellant having applied for JOA #135-90, the agency contends that the allegation was properly rejected for failing to state a claim. In conclusion, the agency requests that the Commission reopen the previous decision and affirm the rejection of appellant's complaint. Appellant proffers no response to the agency's request. ANALYSIS AND FINDINGS As noted above, the Commission may, in its discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. 1613.235(b) is met. Upon review, the Commission finds that the agency's request meets the requisite criteria and a reopening is granted. Initially, we note that there is some confusion as to what allegations are raised in appellant's formal complaint. In his formal complaint, appellant alleged that he was subjected to discrimination when (1) his Supervisor made derogatory comments about him to the Chief of Classification regarding his ability to perform GS-11 work, and (2) the Chief prepared a memorandum of the Supervisor's comments as a 'mind jogger.' In specifying his requested remedial relief, appellant further alluded to incidents when he was not promoted to the GS-11 level beginning as early as April 1988. We note that appellant did raise the issue of his nonpromotion during his EEO counseling and did specifically identify JOA #135-90 in correspondence to his Congressman. Consequently, we find, in concurrence with the agency, that appellant did include the issue of his nonpromotion in his formal complaint and this issue must be addressed in determining the disposition of his complaint. However, we further find that the nonpromotion issue lacks sufficient information to permit a determination regarding its acceptability. While the agency specifically addressed JOA #135-90, appellant clearly alluded to other incidents when he was not selected beginning in April 1988. Therefore, we find that the allegation concerning appellant's nonpromotion must be remanded to the agency in order to allow appellant the opportunity to provide further information regarding the incidents of nonselection, including the positions applied for, the dates of application, and the dates of his nonselection. Turning to appellant's remaining allegations, we find that both allegations were raised during EEO counseling. The EEO Counselor's Report indicates that appellant raised the issue of his Supervisor's derogatory comments. Appellant himself stated that he saw the Chief's written memorandum about the derogatory comments on November 3, 1989, and that seeing the memorandum prompted him to contact the EEO Counselor. Furthermore, we find that appellant timely contacted the EEO Counselor regarding the derogatory comment allegations since it is undisputed that he pursued counseling in November 1989. Regarding the timeliness of appellant's formal complaint, the Commission finds that it is unrebutted that appellant did not receive the Notice of Final Interview. Contrary to the agency's assertion, we find that it was the agency's burden to show that appellant's complaint was untimely. While the agency claims that appellant's assertion that he did not receive the Notice was rebutted by the EEO Counselor's sworn statement that appellant did receive it, there was no evidence presented to show when appellant purportedly received the Notice and thereby prove that appellant's formal complaint was untimely. It is the agency's burden to have evidence and/or proof to support its final decisions. See Jacques P. Guillery v. Dr. Louis W. Sullivan, M.D., Secretary, Department of Health and Human Services, EEOC Request No. 05891160 (June 25, 1990). Therefore, the Commission finds that, in the absence of evidence to the contrary, appellant timely filed his formal EEO complaint. An employee is 'aggrieved' within the meaning of the EEOC Regulations if he has suffered direct and personal deprivation at the hands of the employer. See Aldo Abatecola v. Veterans Administration, EEOC Appeal No. 01852458 (June 4, 1986). In the present case, the agency found that appellant was not aggrieved by his Supervisor's derogatory comments and, therefore, that his allegations failed to state a claim. The record indicates that at the time when the derogatory comments were made by appellant's supervisor to the Chief of Classification, a desk audit was being conducted on appellant's GS-9 position due to appellant's claim that he was performing GS-11 work. The Commission recognizes that a remark or comment unaccompanied by any concrete effect does not constitute a direct and personal deprivation; however, in the present case, the Commission finds that the Supervisor's comments that appellant was not capable of performing GS-11 work were believed by appellant to have derogatory impact on the outcome of the audit and the subsequent grade level classification of appellant's position: i.e, to have a concrete effect. In this regard, the Commission notes that in its request, the agency quotes from a letter dated December 12, 1989, wherein it is indicated that a desk audit of appellant's position was on-going. While the desk audit was continuing in 1989, the Commission finds that it is reasonable to assume that the audit would have been completed in 1991, when the agency filed its request, yet no comment is made regarding the outcome of that audit, i.e., was appellant's position reclassified at the GS-11 level? Since the agency quotes from the above-identified letter in connection with its argument that appellant's complaint is moot, it is reasonable to believe that if the audit had resulted in the upgrade of appellant's position to the GS-11 level, the agency would have disclosed that fact in arguing mootness. Accordingly, the Commission finds that the Supervisor's comments appear to have had a concrete effect on appellant's desk audit and, therefore, we find that appellant's allegations state a claim. While the agency claims that the Chief's written memorandum of the Supervisor's comments has been destroyed, there is no evidence presented to substantiate this claim and, furthermore, there is no evidence presented regarding the effect of the comments on the classification of appellant's position. Based upon the present record, the Commission finds that the allegations are not moot. CONCLUSION After a review of the agency's request to reopen, the previous decision, and the entire record, the Commission finds that the agency's request meets the criteria of 29 C.F.R. 1613.235(b). Accordingly, it is the decision of the Commission to grant the agency's request to reopen the decision in EEOC Appeal No. 01911513 (July 22, 1991), and that decision is hereby MODIFIED. The Commission hereby REVERSES the agency's decision to reject appellant's complaint and remands the complaint to the agency for further processing in accordance with this decision and the Order below. There is no further right of administrative appeal from the decision of the Commission on this request to reopen. This decision, however, does not constitute a decision on the merits of appellant's complaint. ORDER (1) The agency is ORDERED to provide appellant with the opportunity to present information regarding his al-legations of nonpromotion, including, but not limited to, the specific positions for which he applied, the dates of his applications, and the dates of his nonselection. The agency shall notify appellant of the opportunity for providing this information and the name, address, and telephone number of the agency official to whom the information should be provided. Appellant shall be provided with thirty (30) calendar days from the date of receipt of this notice within which to provide the evidence. A copy of the notice must be submitted to the Compliance Officer, as referenced below. Thereafter, the agency shall determine whether to accept appellant's nonpromotion allegation for processing. If the agency decides to reject the allegation the agency shall issue a final decision setting forth the specific reasons for its rejection. A copy of the final decision must be sent to the Compliance Officer, as referenced below. If the agency accepts the nonpromotion allegation for processing, the agency shall so advise the Compliance Officer. The agency shall then continue processing of the allegation in accordance with EEOC Regulations 29 C.F.R. 1613.216-.222. (2) The agency is ORDERED to process appellant's remanded allegations that his supervisor made derogatory comments to the Chief of Classification and that the Chief made a written memorandum of those comments, in accordance with EEOC Regulations 29 C.F.R. 1613.211 et seq. The agency shall notify the appellant of the acceptance of the remanded allegations within thirty (30) calendar days of the date that this decision becomes final. A copy of the letter of acceptance must be submitted to the Compliance Officer, as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0391) 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. RIGHT TO FILE A CIVIL ACTION (R0391) 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: (1) within thirty (30) calendar days of receipt of notice of final action taken by the agency on your complaint subsequent to this remand; or (2) 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. See Section 717(c) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.; 29 C.F.R. 1613.281. You may be required to exhaust the administrative process prior to filing a civil action, depending upon the jurisdiction in which you file. Furthermore, the limitations period for filing a civil action under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 621 et seq. (ADEA) may differ from the period set out for the filing of civil actions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. 791. You may be foreclosed from filing a civil action on any claim brought under the ADEA if you fail to file within the limitations period applied by the Court in the jurisdiction in which your action is filed. 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. '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 (Z0391) 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 THIRTY (30) CALENDAR DAYS of the date you receive the Commission's decision. FOR THE COMMISSION: Frances M. Hart Executive Officer Executive Secretariat