0120063357
04-07-2009
Leroy S. Jenkins, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Leroy S. Jenkins,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120063357
(formerly 01A63357)
Agency No. ARWRAMC04MAY001
DECISION
On May 9, 2006, complainant filed an appeal from the agency's April 11,
2006 final decision concerning his equal employment opportunity (EEO)
complaint alleging 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 the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a).
At the time of the events at issue, complainant was employed by the agency
as a Police Officer in the Provost Marshal's Office at the Walter Reed
Army Medical Center. In an EEO complaint marked received by the agency
on May 14, 2004, complainant alleged that:
The members of my department are victims of exclusionary employment
policies and practices that has adversely affected me and members of
our group based on our race (African American), Color (Black), and age
(40+) in the following actions: Management had disregarded their prior
police experiences and seniority during employment, hiring, and promotion
selections. Management intentionally bypass us in hiring action by
selecting external candidates with less police officer experiences. Senior
Caucasian officers are allowed to influence selection process by informing
selection board members to consider selecting their friends and army
buddies on the selection lists. Management had held open a position
for a year to give to a retiring PMO Sgt. One Caucasian officer who was
promoted to Sgt. had only (8 months) on the job, and he was promoted over
several African American officers. The Captain, who is our 2nd highest
ranking uniformed officer also hired from the outside instead of looking
at qualified inside personnel and also Caucasian. The agency refuses to
investigate how a certain Caucasian officer was promoted 3 times within
a year and a half to a supervisor position. Management had interfered
with performance ratings of class members by directing supervisors/raters
to change their initial rating to a lower raring. Management has class
members work in less than desirable work area (basement) while Caucasian
officers work in a clean and carpeted 2nd floor office area. Management
does not nominate class members for performance rating awards. Management
interferes with selection process by directing board members to change
their selection recommendations whenever that recommendation is of
a member of the class. Management appoints junior Caucasian officers
authority over the more experienced and senior class members. Management
intimidates and threatens class members with termination for voicing
their discontent. The Major who is our highest ranking uniformed officer
also was hired from the outside instead of looking at qualified personnel
and also Caucasian. The agency had gone around the guidelines of the OPM
standards by selecting Caucasian supervisor who has not yet attended a
Law Enforcement Academy and or school.
The agency initially processed the complaint as a class action,
forwarding it to an EEOC Administrative Judge (AJ) for a decision on
class certification. By decision dated June 22, 2005, after requesting
additional information from complainant, the AJ dismissed the class
complaint on the grounds that it failed to meet the requirements of
numerosity, typicality, commonality and adequacy of representation, which
are prerequisites for establishing a class action under �1614.204(a)(2).
When the agency did not issue a decision within 40 days of receiving
the AJ's dismissal decision, that decision became final.
29 C.F.R. � 1614.204(d)(7) provides that a dismissal of a class complaint
shall inform the class agent (complainant) that the complaint will
continue to be processed as an individual complaint or will also be
dismissed as an individual complaint in accordance with � 1614.107.
In the instant matter, the AJ's decision was silent on the issue of
the continued processing of an individual complaint. However, in light
of no express dismissal of complainant's individual claims by the AJ,
the agency continued processing the matter as an individual complaint.
On April 11, 2006, the agency issued a final decision on "that portion
of . . . [of the original complaint] that pertains to an individual
complaint of discrimination." In that decision, the agency dismissed
the individual complaint, pursuant to 29 C.F.R. � 1617.107, for failure
to state a claim, reasoning that the record was absent any claim that
complainant was personally harmed by a specific alleged discriminatory
action. That instant appeal followed. On appeal, complainant's attorney
raises no specific arguments, instead submitting a standardized EEOC
Appeal Form 573, with the agency's April 11, 2006 decision attached.
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). In the instant matter,
a thorough review of both the formal EEO complaint and the related EEO
counseling materials supports the agency's conclusion that complainant
has failed to allege how he was personally harmed. In his complaint,
and during EEO counseling, complainant did not identify any position he
was not selected for, promotion he was denied or adverse action taken
against him personally. While the EEO counseling report indicates
complainant stated that an alleged discriminatory action occurred on
April 7, 2004, the record does not identify what incident or action
complainant asserts occurred on that date. Moreover, as already noted,
on appeal complainant has not provided any additional information or
argument to counter the agency's rationale for dismissal.
Accordingly, the agency's April 11, 2008 dismissal of the individual
complaint in Agency No. ARWRAMC04MAY001 for failure to state a claim,
pursuant to 29 C.F.R. � 1614.107(a)(1), is AFFIRMED.
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, D.C. 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 7, 2009
__________________
Date
2
0120063357
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
4
0120063357
5
0120063357