01a63023
09-06-2006
Walter S. Smith, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Walter S. Smith,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A63023
Agency No. ARMICOM04APR0008
DECISION
On April 14, 2006, complainant filed an appeal from the agency's March
14, 2006 final decision concerning his equal employment opportunity (EEO)
complaint alleging 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a).
During the period in question, complainant was employed as a Logistics
Management Specialist at an Alabama facility of the agency. On April 2,
2004, complainant initiated contact with an EEO Counselor and, on June 18,
2004, filed a formal EEO complaint, alleging that the agency discriminated
against him on the bases of race (Caucasian), sex (male), color (White),
age (over 40), and reprisal for prior protected EEO activity when (1)
on February 19, 2004, his supervisor (S1) issued him a performance
appraisal that did not accurately reflect his work and, (2) on March
22, 2004, S1 issued him a two-day suspension citing "insubordination,
creating a disturbance in the workplace, and being discourteous to your
supervisor," which was later upheld.
Initially the agency accepted claim (1) for investigation, and informed
complainant that it intended to dismiss claim (2) pursuant to 29 C.F.R. �
1614.107(a)(5) for alleging a proposal to take a personnel action is
discriminatory. Subsequently, complainant informed the agency that the
proposed suspension was upheld effective July 19-20, 2004, and that he
wished to pursue the actual suspension as a claim of discrimination.
In a December 1, 2004 letter, the agency informed complainant that it
would accept claim (2), as an amended, but that it now intended to dismiss
claim (1) (performance appraisal), pursuant to 29 C.F.R. � 1614.107(a)(4),
because complainant had raised the same matter in a negotiated grievance
process.1 At the conclusion of the investigation into claim (2) (the
suspension), the agency informed complainant of his right to request a
hearing before an EEOC Administrative Judge (AJ) or an immediate final
decision by the agency. Ultimately, complainant elected the latter.
In its March 14, 2006 final decision, the agency adopted by reference
the dismissal of claim (1) pursuant to 29 C.F.R. � 1614.107(a)(4), and
found no discrimination as to claim (2). Specifically, for claim (2),
the agency concluded that complainant failed to establish a prima facie
case of discrimination or show that the legitimate, nondiscriminatory
reasons articulated by the agency for its actions were pretext.
Complainant filed the instant appeal.
The Commission finds that the record supports a determination that
complainant filed a grievance regarding the matter alleged in claim
(1) and, because complainant filed his grievance regarding the February
2004 performance appraisal before he pursued the EEO complaint process,
he elected the grievance process. Therefore, we find that the agency
properly dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(4).
Regarding (2), we note that when a complaint is filed on a proposed
action and the agency subsequently proceeds with the action, the action
is considered to have merged with the proposal. See Siegel v. Department
of Veterans Affairs, EEOC Request No. 05960568 (October 9, 1997).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order
because a preponderance of the record evidence does not establish that
discrimination occurred. We agree that complainant failed to establish
pretext.
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 tends 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 6, 2006
__________________
Date
1The record contains an Employee Grievance Report dated March 3, 2004,
regarding a performance evaluation dated February 19, 2004.
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01A63023
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A63023