Gibson M. Peters, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionAug 30, 2005
05a51071r (E.E.O.C. Aug. 30, 2005)

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