0120090995
04-15-2009
Earl L. Ware, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Earl L. Ware,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120090995
Agency No. ARIMWE08AUG03611
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 1, 2008, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (African American) and color (Black) when:
1. On June 5, 2008, complainant was harassed by Army Community Services
(ACS) for not being willing to hire a volunteer to run a children's
story hour within complainant's directorate;
2. 1A Management Official (RMO1) persecuted Black employees within the
HR Directorate on an ongoing basis with various investigations;
3. On July 11, 2008, complainant was removed as a member of the Garrison
Pay Pool Panel and was made an Alternate Member rather than a Primary
Member by a Management Official (RMO2);
4. On July 22, 2008, RMO2 issued complainant a Letter of Reprimand;
5. On September 18, 2008, RMO1 issued a Grievance Decision, which removed
the charge of Dereliction of Duty, but left the overall punishment the
same;
6. RMO's 1 & 2 made racially charged remarks about positive Immigration
and Customs Enforcement comments for Black employees when RMO1 said, "Tell
[a female coworker] enough already with the ICE Comments" and RMO2 said,
"We know that the ICE comments can easily be manipulated by her."
7. On June 6, 2008 a Black employee was given a much stiffer punishment
by representatives from the Civilian Personnel Advisory Center (CPAC)
than complainant felt was appropriate;
8. In July 2008, RMO1 appointed an EEO Officer as the investigator in
a claim involving two Black employees;
9. On an ongoing basis, RMOs 1 & 2 approve pay raises and on-the-spot
cash awards for senior garrison employees in a discriminatory fashion;
10. On an unspecified date, RMOs 1 & 2 took no actions against a White
employee who was disrespectful and who cursed at a Black Management
Official;
11. On an unspecified date, RMOs 1 & 2 allowed a White Management Official
to curse at a another management official with no serious consequences;
12. For the 2007 rating period, RMO2 gave a White Management Official
with only one employee a higher rating and more shares than complainant,
a Black Management Official with 32 employees;
13. RMO2 gave a White Management Official a higher rating than complainant
even though her section was filled with problems the entire rating period;
and
14. Two new Black employees had their positions changed after their
arrival because management realized their race.
The agency did not address an additional claim when:
15. On June 26, 2008, RMO2 directed CPAC to cancel a request
for personnel action to promote a Black employee without informing
complainant.
The agency dismissed claims 1, 22, 3, 6, 7, 8, 9, 10, 11, 12, 13, and 14
for failure to state a claim, finding that complainant was not aggrieved.
The agency further found that claims 1, 2, and 7 where untimely. Finally,
the agency dismissed claims 4 and 5 on the grounds that these matters
were previously raised in a negotiated grievance procedure. On appeal,
complainant argues that his claims should not have been dismissed because
he filed a DA Form 2590 in a timely manner. In addition, complainant
contends that his claims should not have been dismissed for failure
to state a claim. Finally, complainant alleges that because he is
alleging ongoing harassment, his claims are timely and should not have
been dismissed.
As regards claims 2, 8, 9, and 14, the Commission finds that complainant's
complaints constitute a generalized grievance and, therefore, fail to
state a claim. Complainant failed to identify a specific harm that
he sustained. Complainant cannot pursue a generalized grievance that
members of one protected group are afforded benefits not offered to other
protected groups, unless he further alleges some specific injury to him
as a result of the alleged discriminatory practice. See Warth v. Seldin,
422 U.S. 490, 499 (1975); Crandall v. Department of Veterans Affairs, EEOC
Request No. 05970508 (September 11, 1997) (claim that nurse practitioners
in one unit received more favorable treatment than nurse practitioners in
other units was a generalized grievance); Rodriguez v. Department of the
Treasury, EEOC Appeal No. 01970736 (August 28, 1997) (claim that there
was an imbalance in favoring of African-Americans, against Hispanics,
in development and promotion opportunities was a generalized grievance
purportedly shared by all Hispanic co-workers and therefore failed
to state a claim). In the instant claims, complainant is alleging
that others were harmed but does not allege he incurred harm himself.
Accordingly, these claims fail to state a claim.
As regards claims 1, 3, 6, 7, 10, 11, 12, 13 and 15, we find that these
claims similarly fail to state a claim under the EEOC regulations because
complainant failed to show that he was subjected to unwelcome verbal or
physical conduct involving his protected classes, that the harassment
complained of was based on his statutorily protected classes, and that the
harassment had the purpose or effect of unreasonably interfering with his
work performance and/or creating an intimidating, hostile, or offensive
work environment. See McCleod v. Social Security Administration, EEOC
Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982). Nor has he shown he suffered harm or
loss with respect to a term, condition, or privilege of employment for
which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
As regards claims 4 and 5, the record shows that these matters were
addressed in a negotiated grievance procedure. The Commission has
held that an employee cannot use the EEO complaint process to lodge a
collateral attack on another proceeding. See Wills v. Department of
Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United
States Postal Service, EEOC Request No. 05940585 (September 22, 1994);
Lingad v. United States Postal Service, EEOC Request No. 05930106 (June
25, 1993). The proper forum for complainant to raise his challenges to
the grievance proceeding is generally within that proceeding itself.
For the above reasons, the Commission AFFIRMS the FAD.
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, 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 (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 15, 2009
__________________
Date
1 The FAD did not include a claim #2 and numbered this claim as claim #3,
with all subsequent claims incorrectly numbered by one digit.
2 Claim 2 is numbered claim 3 in the FAD, claim 3 is numbered claim 4,
and so on.
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0120090995
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090995