Leroy S. Jenkins, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 7, 2009
0120063357 (E.E.O.C. Apr. 7, 2009)

0120063357

04-07-2009

Leroy S. Jenkins, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.


Leroy S. Jenkins,

Complainant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120063357

(formerly 01A63357)

Agency No. ARWRAMC04MAY001

DECISION

On May 9, 2006, complainant filed an appeal from the agency's April 11,

2006 final decision 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 Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is

accepted pursuant to 29 C.F.R. � 1614.405(a).

At the time of the events at issue, complainant was employed by the agency

as a Police Officer in the Provost Marshal's Office at the Walter Reed

Army Medical Center. In an EEO complaint marked received by the agency

on May 14, 2004, complainant alleged that:

The members of my department are victims of exclusionary employment

policies and practices that has adversely affected me and members of

our group based on our race (African American), Color (Black), and age

(40+) in the following actions: Management had disregarded their prior

police experiences and seniority during employment, hiring, and promotion

selections. Management intentionally bypass us in hiring action by

selecting external candidates with less police officer experiences. Senior

Caucasian officers are allowed to influence selection process by informing

selection board members to consider selecting their friends and army

buddies on the selection lists. Management had held open a position

for a year to give to a retiring PMO Sgt. One Caucasian officer who was

promoted to Sgt. had only (8 months) on the job, and he was promoted over

several African American officers. The Captain, who is our 2nd highest

ranking uniformed officer also hired from the outside instead of looking

at qualified inside personnel and also Caucasian. The agency refuses to

investigate how a certain Caucasian officer was promoted 3 times within

a year and a half to a supervisor position. Management had interfered

with performance ratings of class members by directing supervisors/raters

to change their initial rating to a lower raring. Management has class

members work in less than desirable work area (basement) while Caucasian

officers work in a clean and carpeted 2nd floor office area. Management

does not nominate class members for performance rating awards. Management

interferes with selection process by directing board members to change

their selection recommendations whenever that recommendation is of

a member of the class. Management appoints junior Caucasian officers

authority over the more experienced and senior class members. Management

intimidates and threatens class members with termination for voicing

their discontent. The Major who is our highest ranking uniformed officer

also was hired from the outside instead of looking at qualified personnel

and also Caucasian. The agency had gone around the guidelines of the OPM

standards by selecting Caucasian supervisor who has not yet attended a

Law Enforcement Academy and or school.

The agency initially processed the complaint as a class action,

forwarding it to an EEOC Administrative Judge (AJ) for a decision on

class certification. By decision dated June 22, 2005, after requesting

additional information from complainant, the AJ dismissed the class

complaint on the grounds that it failed to meet the requirements of

numerosity, typicality, commonality and adequacy of representation, which

are prerequisites for establishing a class action under �1614.204(a)(2).

When the agency did not issue a decision within 40 days of receiving

the AJ's dismissal decision, that decision became final.

29 C.F.R. � 1614.204(d)(7) provides that a dismissal of a class complaint

shall inform the class agent (complainant) that the complaint will

continue to be processed as an individual complaint or will also be

dismissed as an individual complaint in accordance with � 1614.107.

In the instant matter, the AJ's decision was silent on the issue of

the continued processing of an individual complaint. However, in light

of no express dismissal of complainant's individual claims by the AJ,

the agency continued processing the matter as an individual complaint.

On April 11, 2006, the agency issued a final decision on "that portion

of . . . [of the original complaint] that pertains to an individual

complaint of discrimination." In that decision, the agency dismissed

the individual complaint, pursuant to 29 C.F.R. � 1617.107, for failure

to state a claim, reasoning that the record was absent any claim that

complainant was personally harmed by a specific alleged discriminatory

action. That instant appeal followed. On appeal, complainant's attorney

raises no specific arguments, instead submitting a standardized EEOC

Appeal Form 573, with the agency's April 11, 2006 decision attached.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant 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 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. Diaz v. Department of the Air Force,

EEOC Request No. 05931049 (April 21, 1994). In the instant matter,

a thorough review of both the formal EEO complaint and the related EEO

counseling materials supports the agency's conclusion that complainant

has failed to allege how he was personally harmed. In his complaint,

and during EEO counseling, complainant did not identify any position he

was not selected for, promotion he was denied or adverse action taken

against him personally. While the EEO counseling report indicates

complainant stated that an alleged discriminatory action occurred on

April 7, 2004, the record does not identify what incident or action

complainant asserts occurred on that date. Moreover, as already noted,

on appeal complainant has not provided any additional information or

argument to counter the agency's rationale for dismissal.

Accordingly, the agency's April 11, 2008 dismissal of the individual

complaint in Agency No. ARWRAMC04MAY001 for failure to state a claim,

pursuant to 29 C.F.R. � 1614.107(a)(1), is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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), 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, D.C. 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 (S0408)

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 (Z1008)

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

April 7, 2009

__________________

Date

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