05a51071r
08-30-2005
Gibson M. Peters, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Gibson M. Peters v. Department of the Army
05A51071
August 30, 2005
.
Gibson M. Peters,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Request No. 05A51071
Appeal No. 07A40013
Agency No. BHEFO0202C0050
Hearing No. 320-A3-8012X
DENIAL
The Department of the Army (agency) timely requested reconsideration
of the decision in Gibson M. Peters v. Department of the Army, EEOC
Appeal No. 07A40013 (June 30, 2005). EEOC Regulations provide that
the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant's complaint alleges that the agency discriminated against
him on the basis of race (African-American) when he received the
same discipline as a White employee whose actions were more egregious
than his. In its request for reconsideration, the agency argues that
this matter should be dismissed for failure to state a claim because it
does not involve harm or loss to the terms, conditions, or privileges
of complainant's employment. The agency cites Kuo v. Department of
the Navy, EEOC Appeal No. 01983560 (May 20, 1999), as the controlling
precedent for the instant complaint. In Kuo, the complainant alleged
that he was harmed when his supervisor failed to discipline a co-worker.
The Commission found that this matter failed to state a claim because
a supervisor's decision to discipline a complainant's co-worker does
not state a claim that affects the terms, conditions, or privileges of
the complainant's employment. We note that the relevant Kuo claim did
not allege that the complainant was subjected to discipline, only that
a co-worker was not disciplined.
In contrast to Kuo, the instant case involves a claim wherein complainant
and his co-worker were disciplined for their participation in an
altercation. Complainant alleges that he was given the same discipline
as the White co-worker although the co-worker clearly engaged in more
egregious conduct than complainant did. Complainant's claim is that
because of racial discrimination, he received the same discipline as
someone whose behavior was much worse. In essence, complainant is arguing
that he deserved less harsh discipline than the White co-worker but, due
to unlawful discrimination, received the same. This Commission finds
that this matter involves sufficient harm or loss to the conditions or
terms of complainant's employment to render him aggrieved. Accordingly,
complainant's complaint states a claim.
After reconsidering the previous decision and the entire record,
the Commission finds that the request fails to meet the criteria of
29 C.F.R. � 1614.405(b), and it is the decision of the Commission to
deny the request. The decision in EEOC Appeal No. 07A40013 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
ORDER
The agency shall submit to the Hearings Unit of the Denver District Office
the request for a hearing and a copy of the complaint file within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that the complaint file has been transmitted
to the Hearings Unit. Thereafter, the AJ shall process the complaint
in accordance with 29 C.F.R. � 1614.109, and the agency shall issue a
final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(1994 & Supp. IV 1999). 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 (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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. 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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__August 30, 2005________________
Date