01A63121
09-11-2006
Kelan R. Evans,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(U.S. Customs and Border Protection),
Agency.
Appeal No. 01A63121
Agency No. 060211
DECISION
Complainant filed an appeal with this Commission from a final agency
decision, dated March 21, 2006, pertaining to his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The
Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
On June 21, 2005, complainant contacted the EEO office claiming that he was
discriminated against when:
On June 6, 2005, he was converted from the Foreign Service Personnel
System to the General Schedule (GS) pay system and the Civil Service
Retirement System, retroactively to October 5, 2003.
Informal efforts to resolve complainant's concerns were unsuccessful. On
June 6, 2005, complainant filed a formal complaint claiming that he was the
victim of unlawful employment discrimination on the bases of age, parental
status, and in reprisal for prior protected activity. Specifically,
complainant claimed that when he was placed into the GS system he was
improperly stripped of foreign service status and placed in an inferior
retirement. Further, complainant contended that the conversion resulted in
the loss of, among other matters, various promotional opportunities and a
step increase.
On March 21, 2006, the agency issued the instant final decision dismissing
the complaint for failure to state a claim. First, the agency found that
the matter should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)
because the agency or the EEOC does not have the authority to grant the
requested remedy. The agency noted that complainant sought to be restored
to the International Service, which would allow him to rejoin the Foreign
Service Personnel Service. The agency found that it lacks the authority to
take such action.
Second, the agency found that complainant was utilizing the inappropriate
forum. The agency fond that complainant should have raised his claims
regarding his removal from FSPS with the Foreign Service Grievance Board
(FSGB). [1]
On appeal, complainant argues that if he was transferred to the Customs and
Border Protection (CBP), from the Department of Agriculture, then CBP
should have the power to transfer him back after discovering the change was
problematic. Further, complainant contains that he requested additional
remedies (i.e. emotional damage, loss of holidays, loss of promotional
opportunities) that should be addressed. Regarding the agency's
determination that complainant selected the wrong forum, complainant agrees
that the removal issues should go before the FSGB. Complainant argues,
however, that the agency should be responsible for the resulting harm.
Complainant asserts that such matters are not properly before the FSGB but
are, instead, properly reviewable by the Commission..
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to state
a claim. 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).
The Commission determines that the instant complaint was properly dismissed
for failure to state a claim. The record reflects that complainant was an
employee of the Department of Agriculture (USDA) in the Animal and Plant
Health Inspection Service. In November 2002, the Homeland Security Act of
2002, Public Law 104-296, established the Department of Homeland Security.
The Act transferred certain agricultural inspection functions that were
performed by the USDA, to DHS. The transfer resulted in a move of
approximately 3,200 full-time positions. Complainant's position was one of
those transferred from USDA to DHS, within the CBP. [2]
The record reflects further that, while employed with the USDA,
complainant's pay and benefits were determined under the Foreign Service
Personnel System (FSPS). However, in 2005, the CBP concluded that it did
not have the authority to use the FSPS for DHS employees. Consequently, in
June 2005, the agency notified complainant and changed his pay to the
appropriate GS grade level and placed him in CSRS.
As noted above, this change to the GS pay system is the subject of
complainant's EEO complaint. We agree with the agency, however, and find
that the matter raised in the complaint is beyond the jurisdiction of the
Commission. This matter is more properly pursued through the Foreign
Service Grievance Board (FSGB). Therefore, we find that the agency's
dismissal for failure to state a claim was proper.
Accordingly, the agency's decision is hereby AFFIRMED.
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 (S0900)
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 (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, 2006
__________________
Date
-----------------------
[1] The FSGB has the authority to decide grievances from members of the
Foreign Service regarding any act, omission or condition which is alleged
to deprive that member a right or benefit authorized by law or regulation
or is otherwise a source of concern or dissatisfaction to the member. 22
U.S.C. � 901.18. Under Section 901.18(7), the board may address grievances
alleging the denial of an allowance, premium pay, or other financial
benefit to which the member claims entitlement.
[2] While complainant's employment with USDA was terminated and he was
transferred to DHS in March 2003, he continued to be paid by USDA until
October 5, 2003.