0120092623
08-22-2012
Keith Kirkpatrick, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Keith Kirkpatrick,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120092623
Hearing No. 570-2008-00023X
Agency No. 060002502092
DECISION
On May 29, 2009, Complainant filed an appeal from the Agency's April 27, 2009, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C. � 206(d), et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as the Command Deputy Equal Employment Opportunity Officer (CDEEOO), GS-260-13, for the Naval Facilities Engineering Command (NAVFAC) located in the Washington Navy Yard, Washington, DC. On August 25, 2006, Complainant filed a formal complaint of discrimination in which he initially set forth five allegations. On September 13, 2006, the Agency dismissed two of Complainant's original allegations (harassment by immediate supervisor regarding work hours and lack of acting supervisory assignments) on timeliness grounds. Complainant testified at his deposition, on January 10, 2008, that he was not pursuing the two dismissed allegations but was withdrawing them. In addition, in Complainant's Opposition to Agency's Motion to Dismiss and Motion for Summary Judgment dated March 5, 2008, he withdrew his Title VII allegations relating to the Agency's failure to upgrade his EEO manager position while he was employed between 2002 and 2005 (except for "background" consideration purposes).
Accordingly, the remaining claims raised by Complainant include: (1) that he was discriminated against, in violation of Title VII, on the bases of race (Black) and sex (male), when management re-advertised and upgraded his former position to a GS-14 after he transferred to another agency; and (2) that he was discriminated against, in violation of the EPA, on the basis of gender (male) when, the Agency refused to promote him to the GS-14 pay/grade as the EEO Manager at the Activity, but hired a female replacement at the GS-14 pay/grade level, on June 7, 2006.1
At the conclusion of the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency filed a Motion to Dismiss and a Motion for Summary Judgment on January 29 and 31, 2008, respectively. Over Complainant's objections, the AJ assigned to the case granted the Agency's January 31, 2008, motion for summary judgment and issued a decision on March 11, 2009. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
FACTUAL BACKGROUND
On March 24, 2002, Complainant commenced working for NAVFAC and worked in the Civilian Personnel Programs (CPP). The Director of CPP was Complainant's first-line supervisor at the time. In or about August or September 2005, NAVFAC reorganized and, as part of the reorganization, created the Total Force Directorate (TFD). The TFD was designed to bring together, under one office, CPP, community management, military personnel, and human relations. When CPP moved under TFD, the Director, Contingency Engineering Business Line and Total Force Directorate became Complainant's second-line supervisor. On December 24, 2005, Complainant left NAVFAC and assumed a GS-14 position with the United States Department of the Interior in Denver, Colorado. In December 2005, TFD examined whether Complainant's position could be combined with the duties of a Diversity Officer position that it was trying to establish. On January 10, 2006, the TFD sought approval for the combined Diversity Officer/CDEEOO position from higher level authority within NAVFAC. The request was eventually approved. On February 17, 2006, the human resources Classification Program Manager classified the new position as a GS-14. On March 3, 2006, the Agency advertised the new GS-14 position. Complainant received notification of the job posting on March 3, 2006, and immediately contacted the EEO office for the Department of the Navy. The job announcement closed on March 17, 2006. Complainant did not apply for the position. On June 7, 2006, a deputy with TFD selected a White female (C1) for the new GS-14 position, effective on July 23, 2006.2
ARGUMENTS BY PARTIES
In its motion to dismiss, the Agency asserts, in part, that Claim 1 failed to state a claim upon which relief may be granted and Claim 2 was untimely. The Agency's motion for summary judgment addresses the merits of each claim, including the assertion that Complainant failed to present evidence of discriminatory animus with respect to Claim 1 or evidence establishing that the work he performed as a GS-13 CDEEOO was substantially equal to that performed by C1 in the new GS-14 position.
Complainant asserts, in part, that he is an aggrieved employee because he could not realistically have applied to the new GS-14 position, having just relocated across country after accepting a new position with the United States Department of the Interior. Complainant also asserts that Claim 1 was filed promptly after he learned that the Agency re-advertised his GS-13 position and Claim 2 was raised promptly after he learned that C1 was hired. Moreover, Complainant asserts that Claim 2 was "like or related" to Claim 1.3 Accordingly, adding Claim 2 to the complaint as an amendment was proper. In addition, Complainant addresses the Agency's motion for summary judgment by asserting, in part, that the evidence in the record supports the conclusion that no valid grounds existed to upgrade his prior GS-13 position because, initially, the Comptroller and Executive Director did not support the grade increase. Complainant also asserts that the old GS-13 position description is "virtually identical" to the new GS-14 position description which supports the conclusion that the positions were substantially equal in terms of skill, effort, responsibility and working conditions and C1 performed the same core duties as Complainant in his prior GS-13 position.
The AJ concluded that while the Agency's motion to procedurally dismiss was "well placed, and dispositive of [the] complaint" it was preferable to address the merits of the complaint and, thus, the Agency Motion to Dismiss was rendered moot by the Administrative Judge's decision.
ANALYSIS AND FINDINGS
We agree with the AJ's conclusion that the Agency's motion to dismiss is well placed and dispositive. Accordingly, we refrain from addressing the merits of the AJ's summary judgment findings
EEOC regulation 29 C.F.R. � 1614.107(a)( 1) provides, in pertinent 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 EEOC'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 21, 1994).
The record shows that Complainant is neither an aggrieved employee nor an applicant for employment. It is undisputed that: (1) Complainant was not employee with the Agency after December 24, 2005; (2) Complainant left the Agency voluntarily and is not raising a constructive discharge claim; (3) the Agency advertised the new GS-14 position on March 3, 2006; and (4) Complainant did not apply for the new GS-14 position. Complainant has not shown how the fact that C1 received a higher grade result is a present harm or loss to him. Shephard v. Dept. of Education, EEOC Appeal No. 0120072633 (Sept. 11, 2007), request to reconsider denied, EEOC Request No. 0520080055 (Nov. 8, 2007). Complainant is also not an aggrieved employee as he did not apply for the new GS-14 position. Shannon v. U.S. Postal Serv., EEOC Appeal No. 01A45266 (Nov. 10, 2004); Owen v. Social Securitv Admin., EEOC Request No. 05950865 (Dec. 11, 1997).
We note that contrary to Complainant's assertions, EEOC case precedent in which complainants are prevented from applying for a position is not relevant herein. Complainant does not assert herein that the Agency ever withheld, withdrew, cancelled, or rescinded the vacancy announcement for the GS-14 position or ever prevented Complainant from applying for the position. We also disagree with Complainant's assertion and conclude that determining whether he could "realistically apply" for the position at issue is not relevant herein. Accordingly, as Complainant did not apply for the new GS-14 position and was not prevented by the Agency from applying for such position, he is neither an aggrieved employee nor an applicant for employment and, accordingly, both Claim 1 and 2 fail to state a claim.
In addition, we note that the record shows that Claim 2 was raised for the first time on February 23, 2007 (i.e., more than 8 months after C1 was hired). Accordingly, to the extent that Claim 2 states a cognizable claim, we agree with the Agency's assertion that it is untimely without Claim 1. To allow it to stand on its own without the original claim would vitiate the EEOC's time limits. See Gordneer v. Dept. of Veterans Affairs, Appeal No. 01A60522, n.l (July 7, 2006). 29 C.F.R. �� 1614.105, 1614.106.
CONCLUSION
Accordingly, based on a thorough review of the record, we dismiss the complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (S0610)
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. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 22, 2012
__________________
Date
1 Complainant's initially raised his EPA claim on February 23, 2007, as an amendment to his initial complaint.
2 Complainant subsequently left his position with the U.S. Department of Interior and, effective February 25, 2008, began employment as an EEO Manager, GS-260-14, with the Department of Veterans Affairs Office of Resolution Management, Washington, DC.
3 EEOC Regulation 29 C.F.R. � 1614.106(d) provides, in pertinent part, that "[a] complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint."
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
01-2009-2623
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013