0120070270
06-18-2009
Domenic L. Amato, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Domenic L. Amato,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120070270
Agency No. AREUVICEN06MAR2378
DECISION
Complainant filed an appeal with this Commission from the September 8,
2006 agency decision 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.
Complainant alleged that he was subjected to discrimination on the bases
of race (White) and in reprisal for prior protected EEO activity when:
1. On February 10, 2006, complainant received a debt collection notice,
dated January 17, 2006, from the Defense Finance and Accounting Service
(DFAS) Denver Center, Colorado. Complainant alleged further that the
Southern European Task Force (Airborne) (SETAF) officials fabricated the
debt and colluded with DFAS to intentionally keep the debt collection
from complainant's knowledge since he left federal employment in February
2003.1
The agency dismissed claim 1 on the grounds that it failed to state a
claim.2 The agency also dismissed the claim alternatively, pursuant to
29 C.F.R. � 1614.107(a)(7), on the grounds that complainant had failed
to respond or proceed with his complaint in a timely manner and, also,
that he had failed to contact an EEO Counselor in a timely manner,
pursuant to 29 C.F.R. �1614.107(a)(2).
In dismissing claim 1 for failure to state a claim, the agency reasoned:
(1) that the DFAS debt collection occurred three years after complainant
had left SETAF's employment in May 2002; (2) that on September 11, 2002,
complainant signed a Foreign Allowances Application, Grant and Report
authorizing a salary advance of $15,000.00; (3) that the salary advance
was requested and authorized by complainant upon his reassignment to the
52nd Signal Battalion in Stuttgart, Germany; and (4) that complainant
failed to provide any evidence to demonstrate any connection between
his SETAF employment, the salary advance, and subsequent DFAS debt
collection. Regarding its dismissal of the claim pursuant to 29 C.F.R. �
1614.107(a)(7), the agency stated that throughout the complaint process,
complainant failed to respond to written requests from the agency for
information and failed to respond in a timely manner.
We find that the agency's dismissal of claim 1 is proper pursuant to 29
C.F.R. �1614.107(a)(1) because claim 1 states the same claim that has
been decided by the agency and the Commission in Amato v. Department
of the Army, EEOC Appeal No. 0120064457, request to reconsider, EEOC
Request No. 0520070240 (July 18, 2007) (Commission affirmed the agency's
dismissal of complaint).
In a detailed statement on appeal, complainant makes several assertions.
Among his assertions, complainant avers that the agency improperly
processed his complaint. We can make no such finding after having
reviewed an extensive record; nor is there persuasive evidence that the
agency tried to obstruct complainant's pursuit of his complaint. The
agency diligently and appropriately sought information and clarification
from complainant regarding his complaint and the issues raised therein
and complainant failed to clarify requested information which would have
allowed the agency to process the complaint effectively, efficiently
and expeditiously. Complainant who appears to have engaged in delay
and obfuscation of issues cannot now be heard to complain and blame the
agency who sought to accommodate complainant during periods of his active
military service but was repeatedly not able to contact complainant either
by telephone or through the mailing addresses complainant provided.
The Commission turns next to four additional claims identified and
addressed by the agency in the September 8, 2006 decision dismissing the
claims. In the dismissal, the agency referenced complainant's letter,
dated April 11, 2006, in which he alleged that the indebtedness claim was
part of a continuing campaign of discrimination against him from 2001,
and in which he identified other incidents in support of his claim
of continuing discrimination. Specifically, the agency noted that
complainant added the following claims to claim 1 in his letter:
2. During the period of summer 2000 to May 2002, complainant was subjected
to a hostile work environment and his co-workers were alienated from him.
SETAF supervisors took adverse action against complainant by doing the
following: placing complainant in an absence without leave status;
issuing him a 14-day suspension for failure to follow proper leave
procedures; charging him with defiance of authority; involuntarily
placing him on a nine-month detail and reassigning complainant to another
position; issuing him a low performance evaluation and placing him on a
performance improvement plan; denying him training; denying him living
quarters allowance (LQA) in 2001; falsely deducting LQA from his pay to
fabricate this debt and DFAS's collection early in 2002; and refusing
to process his resignation notices.
3. During the period 2001 to May 2002, bogus investigations were
initiated against complainant in an attempt to pull complainant's security
clearance. Complainant was coerced to return to work against his doctor's
advice and management failed to provide copies of SF-50 documents timely
to complainant and refused to return required documents to him.
4. During the period 2001 to May 2002, management officials adversely
impacted complainant's civil service career and military reserve
employment when, inside and outside of the command, management effected
continuing discriminatory actions such as: interfering with complainant's
military reserve duty by obtaining information and documents regarding his
military reserve employment; interfering with the successful completion
of his military training by refusing to recognize official documents
for his dual military training; and initiating bogus investigations to
remove his security clearance.
5. In January 2005, complainant was denied certification for his
military reserve Civil Affairs Officer Advanced Course (CAOAC)
and issued an incorrect W-2 for 2004. In March 2005, confidential
military employment records were released to the SETAF Counsel without
complainant's knowledge.
The agency dismissed claims 2 through 5 on the grounds that EEO
Counselor contact was untimely. The agency dismissed claims 4 and 5 on
the alternative grounds that they failed to state a claim, noting that
the claims occurred while complainant was on active military duty and,
also, that the claims were related to his military service, including
an individual right of action (IRA) which complainant had filed under
the Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA). In this regard, the agency noted that complainant had filed the
claims with the Merit Systems Protection Board (MSPB). In this regard,
the agency noted that complainant failed to establish a nexus between
his employment with SETAF and the alleged discriminatory actions which
occurred when he was reassigned to the 52nd Signal Battalion on May 5,
2002, and that he failed to provide specifics concerning his military
reserve unit's release of information to SETAF counsel and how it
adversely affected his military status.
Regarding the dismissal of claims 2 through 5 (and claim 6 which follows),
the Commission initially notes that to the extent that the allegations
raise military matters, the Commission has no jurisdiction over such
matters.
The Commission notes that complainant was also previously before the
Commission in Amato v. Department of the Army, EEOC Appeal No. 0120071342
(April 20, 2007) in which we determined that complainant failed to file
his formal complaint in a timely manner and, accordingly, affirmed the
agency's November 30, 2005 decision which dismissed the complaint on
the timeliness ground. The Commission takes notice that in the agency's
November 30, 2005 decision in EEOC Appeal No. 0120071342, the following
claims of the dismissed complaint were identified:
(a) Collusion with complainant's former employers, SETAF in Vicenza,
Italy, in continuing the discrimination and harassment based on race
and national origin and, also, to continue the retaliation against
complainant for participation in protected activities. The discrimination
and retaliation included: repeated threats towards complainant's civilian
and military careers; removal threats; humiliation in front of peers and
subordinates; slandering of complainant's good name; labeling complainant;
and not protecting complainant from harassment and retaliation.
(b) Took adverse actions including: repeatedly refusing to process
complainant's resignation requests for many months; unlawfully and
maliciously colluding with military officials in the same organization
(U.S. Army) to prohibit complainant's military career progression by
causing complainant's involuntary and unlawful transfer to active duty to
a career ending military slot, without complainant's knowledge or consent;
blocking complainant's exit paths until after complainant was unlawfully
and involuntarily called to active duty by the U.S. Army; creating
and continuing a hostile work environment which forced complainant
into a constructive discharge and ruined complainant's civilian career;
denying complainant a living quarters allowance (LQA); denied complainant
appropriate in and out processing time; not providing a transportation
agreement; improperly processing complaint; improper pay and benefits;
denying military leave and failure to properly process military leave;
fabricating charges against complainant for absence without leave;
denying complainant civil service leave; denying complainant training;
receiving counseling from subordinates and in front of other subordinates;
never responding to complainant's Matters of Concerns and other documents
that complainant filed; giving complainant an inappropriate, unsupported,
and procedurally defective counseling and performance evaluation.
(c) Arbitrarily creating adverse work conditions including: arbitrarily
changing complainant's work shift without his knowledge or consent;
arbitrarily changing complainant's work duties to include degrading
duties such as policing the parking lot and cleaning the toilets, against
complainant's protests; arbitrarily changing complainant's physical
office location; and breaching complainant's confidentiality rights by
discussing confidential matters with complainant's former employer.
(d) Continuing to cause and/or contribute to actions which negatively
impact complainant's life and career by denying certification of
successfully completed training for the CAS3 and the Civil Affairs
Officers Advanced Course (CAOAC); the improper recording of complainant's
payroll data in that complainant's combat service in a war zone was not
provided to proper payroll authorities; refusing to return complainant to
his civil service position upon release from active duty in April 2004;
the denial of pay for complainant's French language proficiency pay for
all duty performed; and erroneous pay being arbitrarily issued and then
referred to collections without complainant's knowledge.
Regarding dismissed claims 2 through 5, the Commission also affirms
the agency's dismissal on other grounds. We find that claims 2
through 5 raise the same claims previously raised by complainant in
EEOC Appeal 0120071342 and are therefore properly dismissed pursuant
to �1614.107(a)(1).
In its decision, the agency also dismissed claim 6 on the ground that
claim 6 raised the same matter that complainant had previously appealed
to the MSPB:
6. Placing complainant in an absence without leave status; issuing
complainant a 14-day suspension for failure to follow proper leave
procedures and charging complainant with defiance of authority;
involuntarily placing complainant on a nine-month detail and reassigning
complainant to another position; issuing complainant a low performance
evaluation and placed complainant on a performance improvement plan;
denied complainant training; denying complainant LQA; falsely deducting
LQA from complainant's pay to fabricate the debt and DFAS's collection
in early 2002; and refusal to process complainant's resignation notices.
The Commission finds that claim 63 is properly dismissed pursuant to
�1614.107(a)(1) for raising the same claim as previously adjudicated by
the agency in EEOC Appeal 0120071342.
The agency's dismissal of the complaint, for the reasons set forth by
the Commission, 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, 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 (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
June 18, 2009
__________________
Date
1 Additional claims are addressed infra.
2We have renumbered the claims in the complaint.
3 For clarity, we kept claim 6 as defined by the agency although it
contains many incidents.
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0120070270
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120070270