01975540_r
06-07-1999
Paul M. Brown, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration,) Agency.
Paul M. Brown, )
Appellant, )
)
v. ) Appeal No. 01975540
) Agency Nos. 97-0124-SSA
Kenneth S. Apfel, ) 97-0125-SSA
Commissioner, ) 97-0126-SSA
Social Security Administration,)
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final agency decision was issued on
June 4, 1997. The appeal was postmarked July 3, 1998. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUES PRESENTED
The issues presented on appeal are as follows:
whether the agency properly dismissed allegations 1-2 of appellant's
complaints (Agency Nos. 97-0125-SSA and 97-0126-SSA) on the grounds that
they state the same claims as that pending before the agency in Agency
No. 97-0124-SSA;
whether the agency properly dismissed allegations 3-5, and 7 of
appellant's complaints on the grounds of failure to state a claim;
whether the agency properly dismissed allegation 6 of appellant's
complaints on the grounds that it states the same claim as that pending
before or decided by the agency.
BACKGROUND
The record reveals that appellant initiated contact with an EEO Counselor
on September 25, 1996. On December 17, 18, and 19, 1996, appellant filed
three formal EEO complaints, respectively. Appellant alleged in each
complaint that he had been discriminated against on the bases of his sex
(male), race (Caucasian), national origin (Anglo-Saxon), and in reprisal
for his previous EEO activity when:
1. He was subjected to a continuing pattern of systemic discrimination
when he was not selected for the position of Systems Accountant,
GS-510-13, which was posted under vacancy announcement number L-964.
2. He was subjected to a continuing pattern of systemic discrimination
when his self-nomination for a performance award was not approved on
August 15, 1996.
3. The agency has been and is pursuing a continuing systemic
discriminatory policy against all males and particularly white males in
the personnel practices of hiring, ratings, awards, and promotions.
Appellant is specifically attacking the overall discriminatory
patterns and practices against males as these actions have affected
his career... and created a hostile employment atmosphere for himself
and all male employees, and has resulted in him not being promoted,
he has received lower ratings, and he has received diminished award
amounts for over 13 years. Further, the ongoing illegal promotion of
females over males has violated the X118 Classification Standards.
Additionally, the Deputy Commissioner for Human Resources exhibited
hostile discriminatory sexism in the telling of a degrading, sexist joke
at the Diversity Conference held in Miami, Florida, on June 20, 1996.
4. In declaring his representative of choice ineligible, the agency
has violated 29 C.F.R. �1614.605(a), �1614.605(c), �1614.102(a)(2)
and �1614.103(a) of the EEOC Regulations.
5. He is unable to obtain fair and equitable counseling from the Office
of Civil Rights and Equal Opportunity (OCREO) due to the discriminatory
patterns and practices against males over the last 13 years. The EEO
Counselor in these matters did not inquire into all of his allegations,
but rather only three of the issues.
6. He was not seriously considered for the OPIR Career Development and
Enrichment Program and the Mid-Level Management Program while he was
an OPIR employee due to the ongoing systemic sex discrimination and his
Anglo-Saxon national origin.
7. The agency is in violation of the requirements in 29 C.F.R. �1614
that (1) the Director of Equal Employment Opportunity is not under the
immediate supervision of the agency head and (2) the agency official
responsible for executing and advising on personnel actions may not also
be responsible for managing, advising, or overseeing the EEO pre-complaint
or complaint process.
In its final decision, the agency dismissed allegations 1-2 of two of
appellant's complaints (Agency Nos. 97-0125-SSA and 97-0126-SSA) on the
grounds that they state the same claims as that which was accepted for
investigation in allegations 1-2 of Agency No. 97-0124-SSA. The agency
dismissed allegations 3-4 on the grounds that they failed to state
a claim. The agency concluded that appellant did not articulate that
he suffered a personal loss or harm with regard to a term, condition,
or privilege of appellant's employment. The agency determined that
appellant set forth generalized allegations and he failed to show
that he is aggrieved. Allegations 5 and 7 were also dismissed on
the grounds of failure to state a claim. The agency determined that
these allegations constitute an attempt to challenge its processing of
appellant's complaints. Allegation 6 was dismissed on the grounds that
it states the same claim as that pending before the agency. The agency
noted that this allegation is essentially the same as allegation 3 of
Agency No. 96-0448-SSA, which was accepted for investigation.
On appeal, appellant contends that as a result of the agency's
discriminatory policies and practices, he has suffered great personal
harm in not being selected for promotions, receiving lower ratings than
females, receiving no cash or noncash awards, and receiving lower cash
award amounts when he did receive a cash award. Appellant argues that
the prevalence of female and minority employees in the OCREO presents
a conflict of interest in light of the nature of his complaints. With
regard to allegation 4, appellant maintains that the agency violated 29
C.F.R. �1614.605(c) by not affording his representative the opportunity
to respond before effecting the disqualification. As for allegation 3,
appellant contends that this allegation is a part of the pattern and
practice of discrimination by the agency against its male employees,
including himself. With respect to allegation 5, appellant claims that
the discriminatory EEO counseling resulted in the failure to develop a
complete record. With regard to allegation 7, appellant argues that
he has not received an unbiased processing of his complaints because
the Director of the OCREO reports to the Deputy Commissioner. As for
allegation 6, appellant claims that allegation 3 of Agency No. 96-0448-SSA
was not accepted for investigation. According to appellant, the agency
dismissed this allegation on the grounds of untimely EEO contact.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of 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 �identical� does not mean �similar.�
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident and parties.
See Jackson v. USPS, EEOC Appeal No. 01955890 (April 5, 1996).
The agency dismissed allegations 1-2 of Agency Nos. 97-0125-SSA and
97-0126-SSA under this provision on the grounds that these allegations
stated the same claim as that which was accepted for investigation
in allegations 1-2 of Agency No. 97-0124-SSA. In light of the fact
that these allegations have been accepted for investigation and are now
pending before the agency as part of Agency No. 97-0124-SSA, we find that
these allegations were properly dismissed as stating the same claim.
Accordingly, the agency's decision to dismiss allegations 1-2 Agency
Nos. 97-0125-SSA and 97-0126-SSA was proper and is AFFIRMED.
With regard to allegation 6, appellant does not dispute that the
allegation states the same claim as that previously raised in another
complaint. Rather, appellant argues that the allegation is not pending
in the previous complaint because the agency dismissed it instead of
accepting it for investigation. Regardless of the agency's disposition
of the allegation in appellant's previous complaint, the key point
remains that it is not disputed that appellant raised the same issue in
his previous complaint. Accordingly, the agency's decision to dismiss
allegation 6 was proper and is AFFIRMED.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination on
the basis of disability) shall be processed in accordance with Part 29
C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has alleged employment discrimination
covered by the EEO statutes. 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 (Apr. 21, 1994).
Appellant alleged in allegation 3 that a continuing systemic
discriminatory policy exists against all males and particularly white
males in terms of hiring, ratings, awards, and promotions. Appellant
also alleged that there have been ongoing illegal promotions of females
over males in violation of the X118 Classification Standards. We find
that appellant has raised a generalized grievance. Appellant failed
to identify a specific harm which he sustained, other than those
identified in other allegations (for example in allegations 1 and 2).
Appellant cannot pursue a generalized grievance that members of one
protected group are afforded benefits not afforded to other protected
groups, unless he further alleges some specific injury to himself as a
result of the alleged discriminatory practice. See Warth v. Seldin, 422
U.S. 490 (1975); Crandall v. Department of Veterans Affairs, EEOC Appeal
No. 05970508 (September 11, 1997) (allegation that nurse practitioners
in one unit received more favorable treatment than nurse practitioners
in other units was a generalized grievance); Rodriguez v. Department of
the Treasury, EEOC Appeal No. 01970736 (August 29, 1997) (allegation that
there was an imbalance in favoring of African-American, against Hispanics,
in development and promotion opportunities was a generalized grievance
purportedly shared by all Hispanic coworkers and therefore failed to
state a claim). With regard to the portion of allegation 3 wherein
appellant discrimination as to the telling of a degrading, sexist joke,
we find that a remark or comment unaccompanied by concrete effect does
not constitute a direct and personal deprivation. Thomas V. Miller
v. Department of Veterans Affairs, EEOC Request No. 05901159 (January
11, 1991). Accordingly, the agency's dismissal of allegation 3 on the
grounds of failure to state a claim was proper and is AFFIRMED.
Appellant alleged in allegation 4 that the agency discriminatorily
disqualified his choice of representative. EEOC Regulation 20
C.F.R. �1614.605(a) provides that a complainant shall have the right to
be accompanied, represented, and advised by a representative of his or
her choice. Here, we find that appellant has alleged harm to a term,
condition, or privilege of his employment with the agency, i.e., the
right to a representative of his choice under the EEOC Regulations.
See Binion v. Department of the Air Force, EEOC Appeal No. 01963870
(March 17, 1997). Accordingly, the agency's dismissal of allegation 4 on
the grounds of failure to state a claim was improper and is REVERSED.<1>
As for allegations 5 and 7, appellant alleged discrimination with respect
to issues related to the processing of his complaints. With respect
to allegations pertaining to complaints processing, the Commission has
stated that the agency is required to refer the complainant to the
agency official responsible for the quality of complaint processing, who
should earnestly attempt to resolve dissatisfaction with the complaints
process as early as possible; such allegations are not processable as
separate allegations of discrimination. See EEO MD 110 (4-8). We note
that appellant has not shown how he has been harmed by the agency's
purportedly improper processing of his complaints. Accordingly, the
agency's dismissal of allegations 5 and 7 on the grounds of failure to
state a claim was proper and is AFFIRMED.
CONCLUSION
The agency's dismissal of allegations 1-3 and 5-7 is hereby AFFIRMED. The
agency's dismissal of allegation 4 is hereby REVERSED. This allegation
is hereby REMANDED for further processing pursuant to the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation (allegation 4)
in accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to
the appellant that it has received the remanded allegation (allegation 4)
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to appellant a copy of the investigative file and
also shall notify appellant 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 appellant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
June 7, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 In addition, we note that pursuant
to EEOC Regulation 29 C.F.R. �1614.605(c), in cases where the
representation of a complainant would conflict with the official or
collateral duties of the representative, the Commission or agency
may, after giving the representative an opportunity to respond,
disqualify the representative. In this case, however, it does
not appear that the agency provided appellant's representative
with the opportunity to respond prior to disqualifying him.