01995667
05-08-2001
Paul E. Mann, Jr., Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Paul E. Mann, Jr. v. Department of the Army
01995667
May 8, 2001
.
Paul E. Mann, Jr.,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01995667
Agency No. BEFLFO9801I0040
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated June 24, 1998, 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. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race (African-American),
color (black), sex (male), age (D.O.B. January 8, 1939) and reprisal
for prior protected activity<1> when:
On November 24, 1997, he became aware that an independent audit was being
conducted by the U.S. Army Audit Agency on the Special Act Award he had
been nominated for; and
he was denied overtime compensation for travel, while on TDY, in the
amount of four hours per day on July 24, 1997, and August 4, 1997.
The agency dismissed claim (1) pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a)(1), for failure to state a claim, and claim (2) pursuant
to EEOC Regulation 29 C.F.R � 1614.107(a)(4), for having previously
raised the same matter in a negotiated grievance procedure. From this
decision complainant now appeals. For the following reasons we AFFIRM
the agency's final decision.
Issue (1)
EEOC Regulation 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).
A complainant is considered �aggrieved� if he has suffered direct
and personal deprivation at the hands of the employer. See Hobson
v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990).
In the instant case, the record reflects that on November 21, 1994,
complainant was nominated for, and later received, a Special Act Award of
$500 for his efforts facilitating the U.S. Army Corps of Engineers (USACE)
use of the Army Oil Analysis program. Complainant raised concern over
the amount he had been awarded, claiming that he was instead entitled to
an award of $6,200. On November 24, 1997, complainant received a memo
alerting him to the fact that the U.S. Army Audit Agency was going to
conduct an audit on the cost savings USACE has realized from implementing
the Army's Oil Analysis program in 1994. Complainant subsequently filed
a formal complaint with the agency. In its FAD the agency dismissed
this claim stating that the award audit is a verification process used
to determine whether the award was properly effected and that the amount
is correct, therefore there was no corresponding personnel action upon
which to base a claim. On appeal, complainant failed to put forth any
arguments that persuade this Commission that he has suffered any direct
and personal deprivation as a result of the audit.
Having an audit done of the Special Act Award for which he had been
nominated does not render complainant �aggrieved� within the meaning of
the regulations as there is no corresponding loss or harm with respect to
his employment. Therefore, the Commission AFFIRMS the agency dismissal
of issue (1) for failure to state a claim.
Issue (2)
As to issue (2), complainant contends that he has been subject to
disparate treatment in regard to his requests for overtime compensation.
Complainant claims that on December 23, 1997, he was made aware by a
female co-worker that on numerous occasions female employees had received
compensatory time. Complainant subsequently filed a complaint stating
that he had been subject to disparate treatment discrimination with
regard to the receipt of overtime compensation. The agency dismissed this
claim under 29. C.F.R. � 1614.107(a)(4), stating that complainant had
previously raised the same claim in a negotiated grievance proceeding.
On appeal, complainant stated that the agency was incorrect in finding
that his complaint alleges an identical claim to the one raised in the
negotiated grievance proceeding as he had not yet been made aware,
at the time of the proceeding, that his female coworkers were being
granted their requests for compensatory time while his requests for the
same were being denied. The agency declined to respond to the appeal.
EEOC Regulation 29 C.F.R. �1614.107(d) provides that an agency shall
dismiss a complaint or portion of a complaint where a complainant
has raised a matter in a negotiated grievance procedure that permits
allegations of discrimination and �1614.301 indicates that the complainant
has elected to pursue the non - EEO process. Where the complainant has
elected to proceed under a negotiated grievance process that permits
allegations of discrimination, i.e., by the filing of a timely formal
grievance prior to the filing of a formal complaint, the complainant
may not thereafter file a complaint on the same matter irrespective of
whether the agency has informed the individual of the need to elect
or of whether the grievance has raised an issue of discrimination.
Because complainant had already filed a formal grievance on denial of
overtime compensation when complainant filed his complaint, complainant's
allegation of discrimination with regard to the denial of compensation
must be dismissed if the negotiated grievance procedure permits the
bringing of allegations of discrimination.
The Commission finds that the negotiated grievance process allowed
for allegations of discrimination. Therefore, we AFFIRM the agency's
decision dismissing complainant's claim under 29. C.F.R. �1614.107(a)(4).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
May 8, 2001
__________________
Date
1The record indicates that complainant participated in prior protected
activity, but it is unclear under which statute(s) such activity occurred.