01985543
02-11-2000
W. Gilbert Storey, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
W. Gilbert Storey, )
Complainant, )
)
v. ) Appeal No. 01985543
Lawrence H. Summers, ) Agency No. 98-1258
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
On July 7, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on June 17, 1998,
pertaining to his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, 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. <1> In his complaint,
complainant alleged that he was subjected to discrimination on the
bases of race (Caucasian), color (white), sex (male), age (58), and in
retaliation for prior EEO activity when:
Complainant could not compete for GS-13 positions because the agency's
employment policies and initiatives, such as the Strategic Initiative
- ERR16 and the Affirmative Employment Plan, foster a performance
appraisal system that disparately impacts on Caucasian males with regard
to recruitment, development, and promotion of agents in the Atlanta
District.
The agency dismissed complainant's complaint on the grounds that
complainant failed to state a claim and also on the grounds that his
complaint involved the same subject matter raised in a previous claim that
was pending or has been decided by the agency or the EEOC. Specifically,
the agency noted that according to the Report of Counseling, complainant
had not applied for any GS-12 promotions in the past year. The agency
argued that as a result of complainant not applying for any promotions,
within the past year, to the GS-12 level, he could not be competitive
for the GS-13 level and therefore, he has not suffered a present harm
or loss with respect to a term, condition, or privilege of employment.
Alternatively, the agency dismissed complainant's complaint on the
ground that it involved the same subject matter raised in complainant's
prior complaint (Agency No. 95-1320) that was the basis of a civil action
decided in the United States District Court, in case number 1-96-CV-2320,
in which complainant was a party.
The record shows that complainant filed a previous EEO complaint on August
10, 1995, (Agency No. 95-1320). In this complaint, complainant alleged
that he was subjected to employment discrimination on the bases of age
(55), color (White), and sex (male) when: (1) he was not selected for
the position of GS-512-12, under vacancy announcement 95-FOO67B, which
began as a continuing violation when complainant was not selected under
vacancy announcement numbers 92-0-131, 92-0-154, and 93-R-0049B; and (2)
the agency's policies and initiatives, such as ERR16 and the Affirmative
Employment Plan foster a performance appraisal system that disparately
impacts on Caucasian males with regard to recruitment, development, and
promotion of agents in the Atlanta District. The agency issued a final
decision in which it dismissed complainant's complaint and complainant
appealed the agency decision. Complainant's appeal was dismissed by the
Commission in Appeal No. 01966536 (October 11, 1996), and a subsequent
request to reconsider was denied in EEOC Request No. 05970059 (September
25, 1998). The record also shows that complainant filed a civil
action in the United States District Court for the Northern District
of Georgia (1-96-CV-2320) in which he sought not to review the merits
of his allegations of discrimination, but rather to challenge certain
practices of the agency and the EEOC in investigating and processing
his administrative complaint of discrimination.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides 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. In the present case,
the record reveals that complainant raised the issue of the alleged
disparate impact of the agency's employment policies and initiatives on
Caucasian males in his previous complaint (95-1320).
Accordingly, the agency's decision to dismiss complainant's complaint
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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 (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:
February 11, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.