0120073393
09-11-2007
Karen Taylor, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Karen Taylor,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120073393
Agency No. ARPINEB07JUN02309
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 18, 2007, dismissing her complaint of unlawful
employment discrimination alleging violations of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
A fair reading of the complaint dated July 16, 2007, and the associated
EEO Counselor's report, reveals that complainant alleged she was
subjected to discrimination on the bases of race (White and American
Indian), color (red and white), and disability (migraines, allergies,
asthma) when her management refused to upgrade her position from an Office
Automation Clerk, GS-4, to an Office Automation Assistant position, GS-5.
In its July 18 2007 final decision, the agency dismissed the complaint,
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim
and for stating the same claim as a previously settled complaint.
Complainant was a GS-4 Office Automation Clerk in the Public Works
Directorate of the agency's Pine Bluff Arsenal. The EEO Counselor's
report states that complainant alleged that in December 2006 and January
2007, there were discussions between complainant and her management
about creating an Office Automation Assistant position, GS-5, in the
Directorate that complainant could compete for. Complainant asserted that
after she was led to believe it would happen, she waited and no position
was advertised. She said that when she approached management about the
issue, she was told that there was no slot available for the new position.
Complainant alleged there was a slot and the only reason the new position
was not created was because of discrimination against her. In addition,
complainant alleged that if a new position could not have been created,
management could have upgraded her in her current position, but refused
to do so. In its final decision, the agency dismissed for failure to
state a claim asserting complainant could not establish she was harmed
because there was no position for which she applied and was not selected.
An agency shall accept a complaint from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). In the present case, complainant has
alleged a present harm-failure to be provided a GS-5 position either
competitively or by an in-place upgrade-and has asserted that this
occurred based on discriminatory factors. This is sufficient to state a
justiciable claim and should not be dismissed without further processing.
While the agency has alluded to a number of justifications for its
actions, these reasons go to the merits of complainant's complaint,
and is irrelevant to the procedural issue of whether she has stated a
claim under Title VII. See Osborne v. Department of the Treasury, EEOC
Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service,
EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States
Postal Service, EEOC Request No. 05910642 (August 15, 1991).
The record also shows that complainant had previously lodged a
similar complaint that resulted in a negotiated settlement agreement
entered into in February 2004. As a result, an audit was done of
complainant's position which did not apparently support an upgrade in her
position. Based on this settlement agreement, the agency also dismissed
the complaint on the basis that the matter of reclassification and
promotion within her position were previously addressed. 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. It has long been established
that "same" does not mean "similar." The Commission has consistently held
that in order for a complaint to be dismissed as the same, the elements
of the complaint must be identical to the elements of the prior complaint
in time, place, incident, and parties. See Jackson v. Department of the
Air Force, EEOC Appeal No 01955890 (April 5, 1996) rev'd on other grounds
EEOC Request No. 05960524 (April 24, 1997). In the instant complaint,
complainant has alleged events that occurred in December 2006 and January
2007, nearly three years after the February 2004 settlement agreement
in her previous complaint. Therefore, it cannot be said that the claims
are the same, and the agency's dismissal on these grounds was in error.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED and the complaint is REMANDED to the agency for
further processing in accordance with the following ORDER.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with 29
C.F.R. � 1614.108 et seq. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 11, 2007
__________________
Date
2
0120073393
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120073393