Tina DiGuglielmo, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMar 17, 2003
01A30361_r (E.E.O.C. Mar. 17, 2003)

01A30361_r

03-17-2003

Tina DiGuglielmo, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.


Tina DiGuglielmo v. Department of the Army

01A30361

March 17, 2003

.

Tina DiGuglielmo,

Complainant,

v.

Thomas E. White,

Secretary,

Department of the Army,

Agency.

Appeal No. 01A30361

Agency No. ARAMCEEO2050003

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated September 10, 2002, dismissing her 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. In her

complaint, complainant alleged that she was subjected to discrimination

on the bases of sex (female) and reprisal for prior EEO activity when:

Complainant's position as Director of Mission Operations (DMO), GS-14 was

reclassified by the Southwest Civilian Personnel Operations Center (CPOC)

to a GS-340-15, approved by her Commander, Person A, and disapproved by

Person B, Commanding General, Operations Support Command.

The agency dismissed complainant's complaint pursuant to the regulation

set forth at 29 C.F.R. � 1614.107(a)(8), for alleging dissatisfaction

with the processing of a previously filed complaint. Specifically,

the agency claimed that the proposed reclassification of complainant to

the GS-15 level was made during the course of settlement negotiations

surrounding a previously filed EEO complaint. The agency argued that

settlement negotiations, including any statements and proposals made

therein, are confidential and privileged and therefore are precluded

from being the subject of a new complaint.

On appeal, complainant argues that she has not raised any dispute over the

EEO process but rather alleges discrimination based on sex and reprisal

when her DMO position was reclassified by CPOC to a GS-15, which was

approved by Person A, but was disapproved by Person B. She explains

that Person A discussed the possibility of resolving her complaints by

reclassification of her current position as DMO from GS-14 to GS-15,

due to the scope and complexity of the position. Complainant claims

that in the Spring of 2001, Person A asked the Chief, Installation

Oversight Officer (IOO) to rewrite the DMO job description to reflect

the job's true work situation and responsibilities. Complainant notes

that the IOO recommended an updated position description, which was

approved by Person A. Complainant explains that on July 11, 2001, her

attorney formally offered to settle her EEO complaints in exchange for,

inter alia, her non competitive promotion to GS-15 in her DMO position.

Complainant notes that on October 3, 2001, CPOC provided Person A the

upgraded job description for DMO classified as a GS-15 Program Manager.

Complainant states that Person A informed her of the upgrade, provided

her with a copy of the job description, and assured her of his plans to

promote her to GS-15. Complainant explains that on October 25, 2001,

she was informed that Person B refused her promotion. Complainant claims

that her complaint is not based on settlement efforts expended on her

prior complaint, but rather on Person B's refusal to authorize her

promotion based on prohibited reasons.

In response to complainant's appeal, the agency reiterates its arguments

that complainant's complaint was properly dismissed for alleging

dissatisfaction with the processing of a previously filed complaint.

The agency states that the present complaint was based on efforts made

by Person A to settle complainant's prior EEO complaints, which were on

appeal to the Office of Federal Operations (OFO). The agency claims that

the settlement discussions between complainant and Person A involved an

effort to reclassify complainant's position from GS-14 to a newly created

position, which would have been graded as a GS-15. The agency rejects

complainant's assertion that the reclassification was necessary due to

the scope and complexity of the position and to reflect the job's true

work responsibilities. The agency notes that Person A had reclassified

complainant's position description as a GS-0340-14 Program Manager as

recently as February 26, 2001. The agency claims that the only reason

Person A requested CPOC develop the GS-15 position description was in an

effort to settle complainant's pending EEO complaints. The agency states

that the position description that was created included responsibilities

that were not currently being performed by complainant. Specifically,

the agency states that the newly added job responsibilities included

serving as an �expert consultant.� The agency claims that Person

A included the additional responsibility of �expert consultant� to

support the GS-15 grade, which could then be used for the settlement

offer to complainant. The agency states that Person B failed to receive

the necessary justification for the creation of the new GS-15 position

and therefore no approval was granted for the position.

The record contains a position description for the program manager,

GS-340-14 position which was classified on February 26, 2001, by Person A.

The record contains the proposed new position description for the DMO

GS-15 position which lists the duties of the GS-14 position and includes

the additional duty to �serve[] as an expert consultant.�

The record contains a July 11, 2001 letter from complainant's attorney

proposing settlement of her EEO complainants for, inter alia, a

non-competitive promotion to GS-15 in her current position of DMO,

�based upon increased duties and responsibilities and/or impact of

person on the job. The DMO position would remain a GS-15 as long as

[complainant] remained in the job.�

Upon review, we find that although the agency dismissed complainant's

complaint pursuant to 29 C.F.R. � 1614.107(a)(8), we find that the

complaint is more appropriately dismissed pursuant to 29 C.F.R. �

1614.107(a)(1), for failure to state a claim. We find that complainant

claims harm from the agency's attempts to resolve her pending EEO

complaints. The Commission has held that �settlement negotiations,

including any statements or proposals, are to be treated as confidential

and privileged to facilitate a candid interchange to settle disputes

informally.� Harris v. Department of the Navy, EEOC Request No. 05941002

(March 23, 1995). To allow a new complainant based on a settlement offer

would defeat this purpose. See Millea v. Department of Veterans Affairs,

EEOC Request No. 05980235 (May 21, 1998); Montague v. Department of the

Army, EEOC Request No. 05920231 (May 2, 1992); see also Green v. United

States Postal Service, EEOC Request No. 05980207 (June 25, 1998)(agency's

withdrawal of an offer made in settlement not actionable).

Accordingly, the agency's decision to dismiss complainant's complaint

is 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

March 17, 2003

__________________

Date