0120090775
05-22-2009
Greg L. O'Neal,1 Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Greg L. O'Neal,1
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120090775
Agency Nos. ARCEPHILA050CT11875, ARCEPHILA06MAR00717 and ARCEPHIL06MAR01104
Hearing No. 530-2007-00104X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's September 17, 2008 final action concerning three captioned EEO complaints that claimed 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant, a former Auditor, GS-9, alleged that the agency discriminated against him on the bases of race (African-American), sex (male), age (52) and in reprisal for prior EEO activity when:
1. on September 30, 2005, his supervisor issued him a memorandum of counseling concerning his office conduct;
2. on October 26, 2005, his supervisor issued him a Notice of Proposed Suspension;
3. on December 14, 2005, his supervisor issued him a Letter of Reprimand as a result of the proposed suspension; and
4. his supervisor stopped his position management review package to upgrade his position.
The record further reflects that a hearing was held before an EEOC Administrative Judge (AJ). After considering the testimony of the witnesses, the AJ determined that complainant did not show by a preponderance of the evidence that he was discriminated against on the bases of race, sex, age and retaliation. The AJ noted in regard to claim 1, complainant's supervisor (S1) issued complainant a memorandum of counseling based on his disrespectful behavior towards her. Regarding claim 2, the AJ stated that according to S1, she issued complainant a Notice of Proposed Suspension based on complainant's October 24, 2006 memorandum in response to the memorandum of counseling. The AJ noted, however, the Deputy Director, the deciding official, mitigated complainant's proposed 5-day suspension to an official Letter of Reprimand.
Regarding claim 4, the AJ noted that according to S1, she submitted complainant's position review package to Human Resources but never re-submitted the package after it was rejected for procedural reasons because she had already issued complainant the memorandum of counseling and proposed suspension; and was not comfortable with recommending complainant's promotion based on the pending disciplinary action. S1 also testified that she wanted to be sure that complainant's behavior improved before re-submitting the package and that any final decision on this matter would be the decision of the Deputy Director. Moreover, the AJ noted that a portion of complainant's performance requirements included a statement regarding the need for good communication and team work with customers, employees and supervisors.
On appeal, complainant states "I feel again that [AJ] ruled in favor of the Agency because both are Federal Government agencies. I feel that [AJ's] decision was bias and was not based on the actual evidence in the case file." Complainant further argues that the agency "wrongly and unfairly dismissed my disparate treatment/Equal Pay Act claim and [AJ's] apparently did not want to fully address the claim and stated that the claim was dismissed by the agency in a previous complaint. I have never filed a disparate treatment/Equal Pay Act claim prior to this claim [emphasis added]."
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not a discriminatory intent existed is a factual finding. See Pullman-Standard v. Swint, 456 U.S. 273, 293 (1982).
As an initial matter, we find that complainant, on appeal, has not provided any persuasive argument regarding the propriety of the AJ's finding of no discrimination. Therefore, after a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final action because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
Partial Dismissal
The record reflects that a the outset of the hearing, the AJ issued a decision dated August 14, 2008, affirming the agency's July 17, 2006 partial dismissal of complainant's claim that he was discriminated against on the bases of race, sex, age and reprisal for prior EEO activity when he was not paid the same salary as his GS-12 female supervisor pursuant to 29 C.F.R. � 1614.107(a)(1) for raising the same claim that is pending before or has been decided by the agency or the Commission (Agency No. ARCHEPHILA06MAR01104). Specifically, the AJ determined that complainant raised the same claim in the one of the three instant captioned complaints pending before him, identified as Agency No. ARCEPHILA06MAR00717.
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.
In the instant case, complainant raises the same claim as set forth in Agency No. ARCEPHILA06MAR00717. The record contains a copy of the agency's May 8, 2006 partial dismissal dated May 8, 2006 for Agency No. ARCEPHIL06MAR00717 dated May 8, 2006. Therein, the agency dismissed complainant's claim that he was discriminated against because he was not paid the same salary as his GS-12 female supervisor for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the agency states "Operating Manual Qualification Standards for General Schedule Positions states: Qualification Standards for Accounting and Budget GS-500 through GS-599 series. To be more specific, at the 511 Auditing Series, one must have a Degree in accounting; or a degree in a related field such as business administration, finance, or public administration that included or was supplemented by 24 semester hours in accounting." The agency further stated to be creditable, specialized experience must have been equivalent to at least the next lower grade level in the normal line of progression for the occupation in the organization. The agency stated that in the instant case, complainant did not meet this requirement.
After a careful review of the record, we determine that the record supports a finding that the instant claim is merely an elaboration of the matters raised in Agency No. ARCHPHIL06MAR00717. Accordingly, the AJ's decision affirming the agency's July 17, 2006 partial dismissal on the grounds of stating the same claim was proper and 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
May 22, 2009
__________________
Date
CERTIFICATE OF MAILING
1 The record reflects that on August 31, 2006, complainant retired from agency employment.
??
??
??
??
2
0120090775
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090775