0120091453
06-23-2009
Martin Proctor, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Martin Proctor,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120091453
Agency No. ARARL08DEC04991
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated January 14, 2009, dismissing his complaint of
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. Upon review, the Commission finds
that complainant's complaint was properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(1).
During the pertinent period, complainant was employed as a Gardner/Heavy
Equipment Operator at a Maryland center of the agency. On December
4, 2008, complainant initiated EEO contact alleging that the agency
discriminated against him on the bases of race (African-American) and
age (over 40) when (a) on December 1, 2008, a Public Works Director
(S1) told him to change his answers on a classification/desk audit
questionnaire that he previously submitted to Personnel regarding his
daily work, and the changes would not reflect the true amount of work
he performed and would give him a lower starting grade and (b) in April
and October 2007, a Public Works Chief did not select him for either one
of two Maintenance Mechanic positions. Subsequently, complainant filed
a formal EEO complaint alleging the same and adding that the agency has
continuously failed to promote him and assigned him work outside of his
position description.
In its January 14 final decision, the agency dismissed (a) pursuant to
29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The agency
stated that complainant's desk audit is ongoing without result so he
is not aggrieved. The agency dismissed (b) pursuant to 29 C.F.R. �
1614.107(a)(2) for untimely EEO contact. The agency stated that
complainant's EEO contact was beyond the statutory 45-day time-frame and
that he failed to show the time period should be extended. The instant
appeal from complainant followed. On appeal, complainant stated that he
is affected by S1's instructions alleged in (a) because they will cause
his grade and pay to be lower and that he withdraws the issue in (b).
After a careful review of the record, the Commission finds that (a)
fails to state a claim under EEOC regulations because complainant
failed to show that he suffered harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994); see also Corbett v. Dep't of the Army, EEOC Appeal
No. 01A50056 (April 28, 2005). However, we note that an adverse
action resulting from the changed desk audit, e.g., a lower grade or
wages, could render complainant aggrieved. Accordingly, the agency's
final decision dismissing complainant's complaint 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
June 23, 2009
__________________
Date
2
0120091453
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091453