Gregory L. O'Neal, Complainant,v.Pete Geren, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMay 11, 2007
0120055618 (E.E.O.C. May. 11, 2007)

0120055618

05-11-2007

Gregory L. O'Neal, Complainant, v. Pete Geren, Acting Secretary, Department of the Army, Agency.


Gregory L. O'Neal,

Complainant,

v.

Pete Geren,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01200556181

Agency No. ARCEHECSA05MAR07772

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated July 11, 2005, 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 basis of reprisal for prior protected EEO activity (arising under

Title VII) when:

1. he was not compensated and provided formal credit for GS-11 and higher

work performed during the period April 2004 - October 2004;

2. his position was not upgraded in accordance with HQ's recommendation

to equally align his grade with all of the other non-supervisor 510

series in Philadelphia;

3. his November 2003 - October 2004 rating was not in accordance with

his significant contributions;

4. his November 2002 - October 2003 performance was not signed by his

senior rater and his $1,000.00 performance award was not approved; and

5. on March 25, 2005, his temporary promotion expired and management

did not make his temporary promotion a permanent promotion.

The agency dismissed claims 1 and 2 as the same claim addressed in Agency

No. AUGAFO0301D0020, the subject of EEOC Hearing No. 170-2004-00336X

and of EEOC Appeal No. 0120053511. The agency dismissed claims 3 and

4 for failure to state a claim, stating that complainant had not shown

that he had suffered an actual injury, and for mootness, stating that

interim events have completely eradicated the effects of the alleged

discrimination. Finally, the agency dismissed claim 5 on the grounds of

failure to state a claim, citing the EEOC Administrative Judge's (AJ)

decision in EEOC Hearing No. 170-2004-00336X, and Miller v. Department

of the Army, EEOC Appeal No. 01A34506 (November 18, 2003).

The regulation set forth at 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.

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). With regard to the agency's dismissal

of claims 1 and 2, a review of the record shows that the claim in Agency

No. AUGAFO0301D0020, the subject of EEOC Hearing No. 170-2004-00336X, is a

claim of discrimination based on race (African American), color (Black),

sex (male) and reprisal when, on December 31, 2002, the Deputy Commander

of the District denied complainant's request for a promotion/upgrade

from a GS-9 to a GS-11. We find that this claim is not identical to

claims 1 and 2 of this complaint. The bases are different, the dates

of the incidents are different, and the substance of the claims, while

thematically similar, are different. Therefore, we reverse the agency's

dismissal of claims 1 and 2.

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). The agency dismissed claims 3

and 4 for failure to state a claim as complainant had not shown a harm.

On the contrary, we find that claim 3 is alleging that complainant was

not rated as highly as he thought his office contributions warranted.

It is a longstanding finding of the Commission that dissatisfaction

with a performance rating states a claim. In like manner, the denial

of a performance award also states a claim. Therefore, we reverse the

agency's dismissal of claims 3 and 4.

The agency also cited the standard for determining if an issue has been

rendered moot, when dismissing claims 3 and 4. The regulation set forth

at 29 C.F.R. � 1614.107(a)(5) provides for the dismissal of a complaint

when the issues raised therein are moot. To determine whether the issues

raised in complainant's complaint are moot, the factfinder must ascertain

whether (1) it can be said with assurance that there is no reasonable

expectation that the alleged violation will recur; and (2) interim relief

or events have completely and irrevocably eradicated the effects of the

alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625,

631 (1979); Kuo v. Department of the Navy, EEOC Request No. 05970343

(July 10, 1998). When such circumstances exist, no relief is available

and no need for a determination of the rights of the parties is presented.

We find that this is inapplicable to these claims as there is no evidence

in the record which shows that complainant's rating was raised or that he

received the $1,000.00 performance award. Although the agency seems to

have interpreted claim 3 to be that complainant's performance rating was

delayed, we do not find that this is a fair reading of what complainant

is claiming. Therefore, dismissal under 29 C.F.R. � 1614.107(a)(5)

is inappropriate.

Finally, the agency dismissed claim 5 for failure to state a claim.

As we found regarding claims 1 and 2, claim 5 is not the same claim as

that made in complainant's previous complaint, Agency No. AUGAFO0301D0020.

The agency argued that complainant has had the option of requesting a desk

audit from the Office of Personnel Management (OPM) if he believes his

position is graded inappropriately, but has not done so. We find that

complainant was temporarily promoted to a GS-11 position from December

26, 2004 though March 25, 2005, while his supervisor was on extended

leave. He apparently believes that the work he does on a regular basis,

as part of his GS-9 position, warrants being paid at the higher level,

even when he is not in a temporary GS-11 position. The SF 50 forms in the

record show that complainant was aware that the promotion would expire

on March 25, 2005. There do not seem to have been any promises made to

complainant that he would continue to be paid at the GS-11 level even

once the temporary promotion ended. Therefore we find that the agency

correctly cited our previous case precedent when dismissing this claim for

failure to state a claim. Complainant is advised that if he believes he

is performing higher graded work as part of his usual duties, he should

seek redress through the desk audit process administered by OPM.

ORDER (E0900)

The agency is ordered to process the remanded claims, claims 1-4

enumerated above, 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 (K0501)

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 19848,

Washington, D.C. 20036. 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 (M0701)

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 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 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 (T0900)

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 (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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

5-11-07

__________________

Date

1 Due to a new Commission data system, this case has been redesignated

with the above-referenced appeal number.

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2

0120055618

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

6

0120055618