Kelan R. Evans, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, (U.S. Customs and Border Protection), Agency.

Equal Employment Opportunity CommissionSep 11, 2006
01A63121 (E.E.O.C. Sep. 11, 2006)

01A63121

09-11-2006

Kelan R. Evans, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (U.S. Customs and Border Protection), Agency.


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.