0120101874
03-21-2012
Maurice B. Tolan, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Maurice B. Tolan,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120101874
Agency No. ARCEMEMP09OCT04615
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated February 23, 2010, dismissing his complaint of unlawful
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
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Electrician with the United States Army Corps of Engineers,
Operations Division, Physical Support Branch, Plant Section, Shops Unit,
in Memphis, Tennessee. On December 7, 2009, Complainant filed a formal
complaint alleging that the Agency subjected him to discrimination on
the bases of race (Black), disability (elbow injury), and in reprisal
for prior protected EEO activity when:
(a) On 14 September 2009, the Chief (RS) called a meeting with
Complainant and offered him a position as an Electrician on the
Motor Vessel (MV) Mississippi. Complainant requested to work as
an Engineer on the MV Goodwin and has yet to receive an answer;
(b) On 7 April 2005, Complainant sent an email to request to work
on the MV Mississippi and MV Goodwin and did not receive a response;
(c) On 30 September 2003, Complainant attended a meeting with RS,
Complainant’s supervisor (S1) and other management officials.
S1 lied and said that Complainant said S1 is not his supervisor
and that Complainant left his post;
(d) On 17 September 2003, Complainant was not allowed on the MV
Mississippi after taking seven days leave. Complainant states
that S1 granted his leave request then denied it and did not allow
Complainant back onto the vessel to gather his personal items.
Complainant was also forced off the vessel due to this incident and
was not allowed on any vessel in the Ensley Engineer Yard vessel
[sic] for 5 years; and
(e) In 1999, management officials allowed S1, and two other
co-workers to hang a dummy with a hangman noose on the MV
Mississippi.
The Agency dismissed Claim (a) for failure to state a claim in accordance
with 29 C.F.R. § 1614.107(a)(1) and cites Tolan v. Dep’t of the
Army, Appeal No. 01A51551 (March, 30 2005) in support if its dismissal.
The Agency dismissed Claim (b) for raising the same claim in a previous
complaint in accordance with 29 C.F.R. § 1614.107(a)(1). The Agency
dismissed Claims (c), (d) and (e) for untimely EEO counselor contact in
accordance with 29 C.F.R. 1614.107(a)(2).
CONTENTIONS ON APPEAL
Complainant asserts that the Commission decision cited by the Agency does
not support the contention that Complainant previously raised identical
claims or that such claims fail to state a claim upon which relief can
be granted.
ANALYSIS AND FINDINGS
Upon review of the complaint, we conclude that Claim (a) pertains to a
request by Complainant to utilize his engineering license in order to
obtain valuable, specific cross-training, as other Agency employees
(outside his protected classes) have had the opportunity to do.
This allegation refers to a career opportunity that has been provided
to other employees, but denied to him. Accordingly, we conclude that
Complainant has alleged a loss with respect to a term or condition of
his employment for which a remedy exists. The Commission has previously
concluded that the decision cited by the Agency (Tolan, EEOC Appeal
No. 01A51551) involved Complainant’s “interest in riding the [Motor
Vessel Mississippi].” However, Claim (a) is distinguishable since
it involves the alleged denial of an assignment which was provided to
other employees outside Complainant’s protected classes. See Tolan
v. Dep’t of the Army, EEOC Appeal No. 01A54712 (Nov. 16, 2005).
We also find, contrary to the Agency’s assertion, that Claim (b) is
not identical to the claim raised in Tolan, EEOC Appeal No. 01A51551
which states that “on July 24, 2004, complainant did not receive a
response as to whether or not he would be allowed to ride the Motor
Vessel Mississippi.”
The Commission regulations set forth in 29 C.F.R. § 1614.107(a)(1)
provide that the agency shall dismiss a complaint that states the
same claim that is pending before or has been decided by the agency
or Commission. It has long been established that “identical” does
not mean “similar.” The Commission has consistently held that in
order for a complaint to be dismissed as identical, the elements of the
complaint must be identical to the elements of the prior complaint in
time, place, incident, and parties. See Jackson v. Department of the Air
Force, EEOC Appeal No 01955890 (April 5, 1996) rev'd on other grounds
EEOC Request No. 05960524 (April 24, 1997). The evidence in the record
shows that in addition to citing a different date, Claim (b) pertains
to Complainant’s request to return from light duty to his original
position with the Agency on either the MV Mississippi or the MV Goodwin.1
Lastly, we agree with the Agency’s conclusion that Claims (c), (d)
and (e) were untimely. The record shows that Complainant initiated EEO
counseling on October 5, 2009, which is many years beyond the 45-day
time frame.
CONCLUSION
Accordingly, for reasons stated herein-above, we REVERSE the Agency’s
final decision, in part and AFFIRM it, in part. Clams (a) and (b)
are REMANDED for further processing in accordance with this decision
and ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The Agency shall issue
to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the Complainant requests a
final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 77960, Washington, DC
20013. 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.
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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
In the alternative, you may file a civil action 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. 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
March 21, 2012
__________________
Date
1 The complaint indicates that Complainant had surgery on his right
elbow in September 2004 and was assigned light duty tasks upon his return
to work.
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2
01-2010-1874
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013