01A30361_r
03-17-2003
Tina DiGuglielmo, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Tina DiGuglielmo v. Department of the Army
01A30361
March 17, 2003
.
Tina DiGuglielmo,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A30361
Agency No. ARAMCEEO2050003
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated September 10, 2002, dismissing her 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 her
complaint, complainant alleged that she was subjected to discrimination
on the bases of sex (female) and reprisal for prior EEO activity when:
Complainant's position as Director of Mission Operations (DMO), GS-14 was
reclassified by the Southwest Civilian Personnel Operations Center (CPOC)
to a GS-340-15, approved by her Commander, Person A, and disapproved by
Person B, Commanding General, Operations Support Command.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(8), for alleging dissatisfaction
with the processing of a previously filed complaint. Specifically,
the agency claimed that the proposed reclassification of complainant to
the GS-15 level was made during the course of settlement negotiations
surrounding a previously filed EEO complaint. The agency argued that
settlement negotiations, including any statements and proposals made
therein, are confidential and privileged and therefore are precluded
from being the subject of a new complaint.
On appeal, complainant argues that she has not raised any dispute over the
EEO process but rather alleges discrimination based on sex and reprisal
when her DMO position was reclassified by CPOC to a GS-15, which was
approved by Person A, but was disapproved by Person B. She explains
that Person A discussed the possibility of resolving her complaints by
reclassification of her current position as DMO from GS-14 to GS-15,
due to the scope and complexity of the position. Complainant claims
that in the Spring of 2001, Person A asked the Chief, Installation
Oversight Officer (IOO) to rewrite the DMO job description to reflect
the job's true work situation and responsibilities. Complainant notes
that the IOO recommended an updated position description, which was
approved by Person A. Complainant explains that on July 11, 2001, her
attorney formally offered to settle her EEO complaints in exchange for,
inter alia, her non competitive promotion to GS-15 in her DMO position.
Complainant notes that on October 3, 2001, CPOC provided Person A the
upgraded job description for DMO classified as a GS-15 Program Manager.
Complainant states that Person A informed her of the upgrade, provided
her with a copy of the job description, and assured her of his plans to
promote her to GS-15. Complainant explains that on October 25, 2001,
she was informed that Person B refused her promotion. Complainant claims
that her complaint is not based on settlement efforts expended on her
prior complaint, but rather on Person B's refusal to authorize her
promotion based on prohibited reasons.
In response to complainant's appeal, the agency reiterates its arguments
that complainant's complaint was properly dismissed for alleging
dissatisfaction with the processing of a previously filed complaint.
The agency states that the present complaint was based on efforts made
by Person A to settle complainant's prior EEO complaints, which were on
appeal to the Office of Federal Operations (OFO). The agency claims that
the settlement discussions between complainant and Person A involved an
effort to reclassify complainant's position from GS-14 to a newly created
position, which would have been graded as a GS-15. The agency rejects
complainant's assertion that the reclassification was necessary due to
the scope and complexity of the position and to reflect the job's true
work responsibilities. The agency notes that Person A had reclassified
complainant's position description as a GS-0340-14 Program Manager as
recently as February 26, 2001. The agency claims that the only reason
Person A requested CPOC develop the GS-15 position description was in an
effort to settle complainant's pending EEO complaints. The agency states
that the position description that was created included responsibilities
that were not currently being performed by complainant. Specifically,
the agency states that the newly added job responsibilities included
serving as an �expert consultant.� The agency claims that Person
A included the additional responsibility of �expert consultant� to
support the GS-15 grade, which could then be used for the settlement
offer to complainant. The agency states that Person B failed to receive
the necessary justification for the creation of the new GS-15 position
and therefore no approval was granted for the position.
The record contains a position description for the program manager,
GS-340-14 position which was classified on February 26, 2001, by Person A.
The record contains the proposed new position description for the DMO
GS-15 position which lists the duties of the GS-14 position and includes
the additional duty to �serve[] as an expert consultant.�
The record contains a July 11, 2001 letter from complainant's attorney
proposing settlement of her EEO complainants for, inter alia, a
non-competitive promotion to GS-15 in her current position of DMO,
�based upon increased duties and responsibilities and/or impact of
person on the job. The DMO position would remain a GS-15 as long as
[complainant] remained in the job.�
Upon review, we find that although the agency dismissed complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(8), we find that the
complaint is more appropriately dismissed pursuant to 29 C.F.R. �
1614.107(a)(1), for failure to state a claim. We find that complainant
claims harm from the agency's attempts to resolve her pending EEO
complaints. The Commission has held that �settlement negotiations,
including any statements or proposals, are to be treated as confidential
and privileged to facilitate a candid interchange to settle disputes
informally.� Harris v. Department of the Navy, EEOC Request No. 05941002
(March 23, 1995). To allow a new complainant based on a settlement offer
would defeat this purpose. See Millea v. Department of Veterans Affairs,
EEOC Request No. 05980235 (May 21, 1998); Montague v. Department of the
Army, EEOC Request No. 05920231 (May 2, 1992); see also Green v. United
States Postal Service, EEOC Request No. 05980207 (June 25, 1998)(agency's
withdrawal of an offer made in settlement not actionable).
Accordingly, the agency's decision to dismiss complainant's complaint
is AFFIRMED.
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 17, 2003
__________________
Date