Colleen M.v.Dep't of Labor

Equal Employment Opportunity CommissionFeb 4, 2016
EEOC Appeal No. 0120160347 (E.E.O.C. Feb. 4, 2016)

EEOC Appeal No. 0120160347

02-04-2016

Colleen M. v. Dep't of Labor


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Coleen M.,1

Complainant,

v.

Thomas E. Perez,

Secretary,

Department of Labor

(Mine Safety & Health Administration),

Agency.

Appeal No. 0120160347

Agency No. 15-04-114

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated October 7, 2015, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Management Assistant at the Agency's Administrative Services Group, Southeastern District Office, Metal and Non-Metal Mine Safety and Health, in Birmingham, Alabama. In April 2014, Complainant's position underwent a reduction in grade. Complainant filed an EEO complaint at that time asserting that she had been subjected to unlawful discrimination when her position was changed from a GS-7 to a GS-5 position. The matter was investigated and the Agency issued a final decision finding no discrimination on November 13, 2014.

Complainant is now a GS-8 Secretary. Complainant later learned in May 2015, that a white, male employee (Employee) with the Agency was in a similar Management Assistant GS-7 position. However, he was selected through a desk audit for a GS-9 promotion. Complainant attempted to address the issue with the Agency but the Agency took no action. Based on this information, Complainant believed that she had been subjected to racial discrimination. Therefore, in June 2015, Complainant contacted the EEO Counselor. When the matter could not be resolved informally, on July 30, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and race (African-American) when, on May 31, 2015, the Employee was selected for a promotion to the GS-9 position.

The Agency dismissed the instant complaint finding that Complainant has alleged the same claim in her prior EEO complaint, namely Agency No. DOL-14-04-002. The Agency found that the two EEO complaints involved the same reduction in grade. As such, the Agency dismissed the instant matter pursuant to 29 C.F.R. � 1614.107(a)(1).

Complainant appealed the Agency's dismissal. Complainant indicated that the first complaint was about the fact that she had requested an upgrade through the desk audit and it resulted in a downgrade. She asserted that the second complaint, the same position that was downgraded from a GS-7 to the GS-5 level occupied by a white male has been upgraded to the GS-9 level. She argued that the positions were similar but the desk audit resulted in two different grades. She indicated that she informed the Agency of the classification and has not received a response. As such, Complainant stated that the second complaint is a continuation of the situation raised in the first complaint. In addition, Complainant provided information regarding events that have occurred since she received the FAD. Therefore, Complainant requested that the Commission reverse the Agency's dismissal.

The Agency responded to Complainant's appeal asserting that she is raising the same events in both complaints. Accordingly, the Agency asked that the Commission affirm its dismissal.

ANALYSIS AND FINDINGS

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. Upon review of the record, we find that Complainant has in fact alleged the same claim in the instant complaint as she did in her prior complaint. The crux of the instant complaint is that Complainant was subjected to unlawful discrimination when her position was downgraded due to a desk audit. In the instant complaint, she subsequently learned that the Employee received an upgrade for the same position when she was given a downgrade. Complainant in essence, has learned additional information. However, Complainant is still trying to litigate the same desk audit which was subject of the prior EEO complaint. As such, we find that the Agency's dismissal was appropriate.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0815)

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), at Chap. 9 � VII.B (Aug. 5, 2015). 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 (S0610)

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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden's signature

Carlton M. Hadden, Director

Office of Federal Operations

February 4, 2016

__________________

Date

1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.

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