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