0120130021
12-11-2012
Dale P. Foster, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Dale P. Foster,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120130021
Agency No. 9R1M12076
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 23, 2012, 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., the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor Depot Maintenance Officer, GS-301-14 at the Agency's Robins Air Force Base, 402 MXW/OB in Georgia.
On July 19, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his sex (male) and age (53) when as recently as April 20, 2012, he received his Core Personnel Document (CPD), and the discrimination continues in that:
a. His assignment of duties in the CPD are coded as GS-14;
b. He is performing the duties of a GS-15, and receiving pay as a GS-14.
The Agency dismissed the complaint for stating the same claim in informal EEO complaint 9R1M11005 (October 2010), formal EEO complaint 9R1M11116, filed on March 29, 2011, and formal EEO complaint 9R1M11221, filed on September 19, 2011. 29 C.F.R. � 1614.107(a)(1). The Agency also dismissed the complaint for constituting part of a clear pattern of misuse of the EEO process for a purpose other than the prevention and elimination of employment discrimination. 29 C.F.R. � 1614.107(a)(9).
The record shows that in August 2010, Agency National Security Personnel System employees were notified that the National Defense Authorization Act for Fiscal Year 2010 repealed the NSPS and mandated conversion back to the General Schedule (GS) classification and pay scale.1 In accordance with this, effective September 12, 2010, Complainant was converted from a Supervisor Depot Maintenance Officer, YC-1101-03 to Supervisor Depot Maintenance Officer, GS-0301-14.
On October 8, 2010, Complainant engaged in EEO counseling. The Agency assigned this informal complaint number 9R1M11005. Complainant alleged that he was discriminated against based on his race, sex and age when on September 12, 2010, he was converted from YC-03 to GS-14, rather than GS-15. He cited an allegedly similarly situated employee who was converted to GS-15. As remedy Complainant requested, in part, a promotion to GS-15 retroactive to September 12, 2010. On December 27, 2010, he withdrew this informal complaint in writing.
In February 2011 Complainant again initiated contact with an EEO counselor. He then filed formal EEO complaint 9R1M11116 alleging that he was discriminated against based on his age and sex when on February 7, 2011, he became aware of inconsistencies and disparate treatment with the conversions from NSPS to GS. Complainant alleged that the Agency discriminated against him when it moved him to a GS-14 position and a similarly situated employee was moved to a GS-15 grade. As remedy he requested, in part, a promotion to GS-15 retroactive to September 12, 2010. The Agency procedurally dismissed this complaint. In Foster v. Department of the Air Force, EEOC Appeal No. 0120113374 (Dec. 16, 2011) the EEOC affirmed the Agency's dismissal on the grounds that it raised the same claim as informal complaint 9R1M11005, which was withdrawn.
In June 2011, Complainant again initiated contact with an EEO counselor. Thereafter he filed formal EEO complaint 9R1M11221 alleging that he was discriminated against based on his age and sex when as recently as May 6, 2011, he was required to sign a CPD acknowledging his grade as GS-14, discrimination which continues. As remedy Complainant requested, in part, that he be made a GS-15, retroactive to September 12, 2010. The Agency procedurally dismissed this complaint. In Foster v. Department of the Air Force, EEOC Appeal No. 0120111155 (Dec. 7, 2012) the EEOC affirmed the Agency's dismissal of this complaint for raising the same claim as informal complaint 9R1M11005 and prior formal EEO complaint 9R1M11116. The EEOC found that Complainant was simply using the CPD as a vehicle to challenge his September 12, 2010, conversion to GS-14, an EEO claim which was already decided.
Complainant signed the CPD on September 12, 2010, May 6, 2011, and again on April 20, 2012. The CPD indicated that he was converted from NSPS, and set forth the duties, classification, and standards of the position. Complainant contends that when he is asked to sign the CPD with each new annual appraisal cycle this provides a new annual legal opportunity to address the recurring discrimination regarding his grade level. After signing the CPD on April 20, 2012, Complainant filed a formal EEO complaint alleging the issue in this case. As remedy Complainant requested, in part, that he be made a GS-15, retroactive to September 12, 2010.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that prior to a request for a hearing in a case, the Agency shall dismiss an entire complaint that states the same claim that is pending or has been decided by the Agency or Commission.
We agree with the Agency that the claim in the instant complaint is the same as the claim in prior informal EEO complaint 9R1M11005, and prior formal EEO complaints 9R1M11116 and 9R1M11221; the first of which Complainant withdrew, and the remaining of which have already have already been decided. Complainant's argument that being presented with the CPD again on April 20, 2012, created a new opportunity to challenge the recurring discrimination of being a GS-14 is not persuasive. The record shows that Complainant is simply using the CPD as a vehicle to challenge his September 12, 2010, conversion to GS-14, an EEO claim which has already been decided, i.e., dismissed.2
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
December 11, 2012
__________________
Date
1 The record in this case refers to files, including the parties appeal submissions, in this case, EEOC Appeal No. 0120113374 (Complainant's appeal in complaint 9R1M11116), and EEOC Appeal No 0120121155 (Complainant's appeal in complaint 9R1M11221).
2 We decline to also dismiss the complaint under 29 C.F.R. � 1614.107(a)(9). While Complainant has filed repeated complaints challenging his conversion on September 12, 2010, to a GS-14 employee, the Agency has not shown that he has done so for a purpose other than the prevention and elimination of employment discrimination.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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