01975473
09-07-1999
John Williams, Jr., Appellant, v. Louis Caldera, Secretary, U.S. Department of the Army, Agency.
John Williams, Jr., )
Appellant, )
) Appeal No. 01975473
v. ) Agency No. COL-96-AR-150-E
) Hearing No. 160-96-8415X
Louis Caldera, )
Secretary, )
U.S. Department of the Army, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of race (African American)
and color (black) in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant alleges he
was discriminated against when: (1) he received a notice of back pay
due based on a temporary promotion to GS-14, and (2) his salary was
garnisheed as a result of the notice of back pay due without providing
information on his �Waiver of Erroneous Payment�. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that appellant, a GS-13 Civil Engineer, at the agency's
N.Y. District Corps of Engineers, filed a formal EEO complaint with
the agency on April 7, 1995, alleging that the agency had discriminated
against him as referenced above. At the conclusion of the investigation,
appellant requested a hearing before an Equal Employment Opportunity
Commission (EEOC) Administrative Judge (AJ). Pursuant to 29 C.F.R. �
1614.109(e), the AJ issued a Recommended Decision (RD) without a hearing,
finding no discrimination.
In her decision, the AJ found that the record reflected the following
facts: during the period January 2, 1993, through April 10, 1993,
appellant was overpaid $510.51 as a result of two administrative errors
in the payroll process. The first error occurred when appellant's pay
was erroneously set at the seventh step of the GS-14 salary level rather
than at the sixth step, after he was temporarily promoted. The second
error occurred when the agency continued to pay appellant at the higher
salary level beyond the �not to exceed� date of his temporary promotion.
Upon notification of the overpayment and the requirement to submit
repayment to the agency, on October 1, 1993, appellant requested a waiver
of the repayment. The agency did not respond to appellant's waiver
until a year later, due in part to appellant's failure to follow correct
procedures during the waiver application process. During this time,
the amount of $629.81 for processing fees and penalties was garnisheed
from appellant's wages. On October 4, 1994, the Director of Resources
Management (DRM)(Caucasian) denied appellant's waiver request. On October
14, 1994, the DRM denied appellant's request for reconsideration because
he failed to submit additional evidence.
According to the DRM, appellant's waiver was denied because appellant
received documents which placed him on notice that he was being overpaid.
As such, according to agency and General Accounting Office regulations,
appellant was not considered without fault in accepting the monies.
He further testified that employees are not entitled to retain
overpayments simply caused by administrative errors, particularly when
the employee received information which documented the overpayment.
Furthermore, he testified that waivers are granted only in specific
instances, for example, if appellant had been continuously performing
the GS-14 step 7 functions.
Although appellant alleged that another employee (Caucasian) had been
granted a waiver for an overpayment, the AJ found that the record revealed
that this employee had in fact been overpaid, but submitted repayment and
therefore did not request a waiver. As such, the AJ found that appellant
failed to establish a prima facie case of discrimination because he failed
to demonstrate that a similarly situated employee not in his protected
class was treated differently under similar circumstances. Furthermore,
the AJ found that appellant had not proffered any other persuasive
evidence that the agency was motivated by race or color discrimination.
In sum, the AJ found that appellant was not discriminated against,
as alleged.
On May 30, 1997, the agency issued a final decision adopting the
AJ's finding of no discrimination. On appeal, appellant raises a new
allegation of discrimination, namely, that he was discriminated against
when he did not receive a comparable promotion to a white employee.<1>
Furthermore, appellant contends that the agency's action in garnisheeing
his salary without notification was mean spirited and constituted an
act of discrimination.
In response to appellant's appeal, the agency argues that appellant has
failed to prove that he was treated differently than another employee
outside of his protected group. Furthermore, assuming arguendo,
that appellant established a prima facie case, the evidence revealed
that the agency articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, the agency contends that appellant failed
to meet the statutory prerequisites for a waiver. Furthermore, there
were no unusual circumstances which justified a waiver for overpayment
due to an administrative error.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that appellant failed to present
evidence that any of the agency's actions were motivated by discriminatory
animus toward appellant's race or color. Therefore, after a careful
review of the record, including appellant's contentions on appeal, the
agency's response, and arguments and evidence not specifically addressed
in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
9/7/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1Appellant is advised
that if he wishes to pursue, through the EEO
process, the additional allegation he raised
for the first time on appeal, he shall initiate
contact with an EEO counselor within 15 days after
he receives this decision. The Commission advises
the agency that if appellant seeks EEO counseling
regarding this new allegation within the above 15
day period, the date appellant filed the appeal
statement in which he raised this allegation with
the agency (August 2, 1997) shall be deemed to be
the date of the initial EEO contact, unless he
previously contacted a counselor regarding this
matter, in which case, the earlier date would
serve as the EEO counselor contact date. Cf.
Aleaxander J. Qatcha v. Dept. of the Navy, EEOC
Request No. 05970201 (January 16, 1998).