0120170541
05-25-2018
Concha E.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Concha E.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120170541
Hearing No. 550201200344X
Agency No. SF120216SSA
DECISION
On November 19, 2016, Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") pursuant to 29 C.F.R. � 1614.403, from the Agency's October 11, 2016, final order concerning her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as an IT Specialist, GS-11, at its Teleservice Center in Salinas, California ("Salinas TSC").
On January 12, 2012, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of race (white), age (57), and reprisal (prior protected EEO activity) when:
On December 19, 2011, Management unilaterally decided not to advertise a vacancy announcement for a GS-12 Information Technology position as a deliberate attempt to keep Complainant from applying for the position.
A thorough review of the record and submissions of the parties provides the following:
In 2005, the Agency underwent a nation-wide "standardization" of positions ("PDs") in all its TSCs. IT Specialists such as Complainant maintained their PDs, which provided for a maximum pay grade of GS-11. However, the IT Specialist PD was phased out in favor of the TSC Systems Specialist, which "blended" several PDs and had a maximum pay grade of GS-12. At the time, the IT Specialists declined a desk audit to determine if they, like the TSC Systems Specialists, could qualify for GS-12 compensation. Complainant alleges that her PD as an IT Specialist is equivalent to that of a TSC Systems Specialist, and that the Agency should have promoted her to TSC Systems Specialist, GS-12 years ago.
In May 2011, Complainant filed an EEO complaint ("Complaint 1") discrimination by the Agency based on age, as she had yet to be promoted or made eligible for a GS-12 PD. See EEOC Hearing No. 550201100590X (Dec. 23, 2013); Agency No. SF110311SSA. Between 2005 and 2011, Complainant alleges approximately thirteen instances where IT Specialists or other GS-11 coworkers were promoted or became eligible to obtain GS-12 level PDs both through permanent and temporary placements. Among other things, Complainant alleged that a significantly younger, Hispanic coworker ("C1") was awarded a "temporary" detail as a TSC Systems Specialist. After the EEO investigation, Complainant requested a hearing before an EEOC Administrative Judge ("AJ").
In January 2012, Complainant filed a Motion to Amend Complaint 1, which was pending a hearing. Complainant could not confirm, but alleges that C1's detail status was changed to a permanent TSC Systems Specialist, GS-12 PD in December 2011. Affidavit testimony from Management provides that C1 applied for and received a temporary promotion to TSC Systems Specialist in November 2009, and that the PD was career-ladder GS 9/11/12, but announced and selected at the GS-9 level. Management confirmed Complainant's allegation that in or around November 2010, C1 was promoted to GS-11, and placed in a one year detail as a TSC Systems Specialist, GS-11. However, the Agency and C1 dispute that the PD was made permanent and that she was promoted to GS-12 in December 2011, as alleged.
In her Motion, Complainant requested that Complaint 1 be amended from failure to place on a detail to "failure to promote," based on her belief that C1 had been promoted to a GS-12 PD without offering others the opportunity to compete for it. Complainant contended that the Agency appeared to have an "open intent to discourage [her] from applying [to GS-12 PDs]." Citing C1 as an example, Complainant argued that the Agency accomplishes this by using detail assignments to allow GS-11 employees to become eligible for GS-12 PDs, and then receive noncompetitive promotions. In other words, the Motion alleged that Management unilaterally decided not to advertise a vacancy announcement for a GS-12 Information Technology PD as a deliberate attempt to keep Complainant from applying for the PD. The AJ denied Complainant's Motion on January 12, 2012.
Also on January 12, 2012, Complainant contacted an EEO Counselor and initiated the instant complaint. After investigating the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. The Agency submitted a Motion for a Decision Without a Hearing. Over Complainant's objections, the AJ granted the Agency's Motion and issued a September 12, 2016 Decision in the Agency's favor.
The AJ's dismissal was based on multiple procedural grounds for failure to state a claim, pursuant 29 C.F.R. � 1614.107(a)(1). The instant appeal followed.
ANALYSIS AND FINDINGS
An Agency shall dismiss a complaint that fails to state a claim. In relevant part, 29 C.F.R. � 1614.107(a)(1) provides that an Agency shall accept a complaint from any aggrieved employee who believes that he or she has been discriminated against by that agency because of her membership in a protected class. 29 C.F.R. �� 1614.103, .106(a). For a complaint to establish that she is "aggrieved" she must demonstrate that she suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
Failure to State a Claim
Complainant's complaint is barred from adjudication under the Doctrine of Collateral Estoppel, which provides that a complainant cannot raise issues that were previously "adjudicated and necessary to the judgment in a prior litigation between the parties." Magnallenes v. Dep't of Justice, EEOC Request No. 05900176 (Jul. 13, 1990). Complainant already raised the issue in the instant complaint for adjudication in her January 2012 Motion to Amend Complaint 1. The Doctrine applies even though Complainant re-worded her allegation and added two additional bases of discrimination in this complaint. See Jones v. Dep't of the Air Force, EEOC Appeal No. 07A10033 (Jun. 28, 2001) (citations omitted). We note that the AJ reviewing Complainant's Motion could have granted it or remanded the matter for processing as a separate EEO Complaint, but opted for dismissal based on the same evidence Complainant submitted for this complaint. There is no evidence in the record indicating the issue previously adjudicated in Complainant's Motion is different from the matter before us. Therefore, we find the matter was properly dismissed.
Alternately, we affirm the AJ's finding that the instant complaint fails to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1), as Complainant has not established that the alleged discriminatory act rendered her an "aggrieved employee."
New Claims Raised on Appeal
On appeal, Complainant raises additional allegations of discrimination. However, Complainant did not include these new claims in her formal complaint, so they will not be adjudicated in this decision. If Complainant wishes to pursue these new harassment and retaliation claims in an EEO complaint, then she must contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003).
Damages
Although complainant claims to have suffered damages because of the incident at issue, the Commission has held that allegations that fail to state a claim cannot be converted into a viable claim merely because the complainant requests compensatory damages as a remedy. Ulanoff v. United States Postal Serv., EEOC Request No. 05950396 (Jan. 26, 1996); Shrader v. Dep't of Agriculture, EEOC Appeal No. 01961499 (Nov. 3, 1997).
CONCLUSION
Accordingly, we AFFIRM the Agency's final order adopting the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
May 25, 2018
__________________
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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