EEOC Appeal No. 0120170861
04-20-2017
Monroe A. v. Dep't of the Army
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Monroe A.,1
Complainant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120170861
Agency No. ARREDSTON15NOV04339
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 16, 2016, 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.
BACKGROUND
During the period at issue, Complainant worked as a General Engineer at the Agency's facility in Redstone Arsenal, Alabama.
On March 9, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), age (73), and in reprisal for prior protected EEO activity. On November 14, 2016, the Agency issued a final decision. The Agency determined that the formal complaint was comprised of the following claim:
On October 1, 2015, [Complainant] learned he was excluded from the Small Business Innovative Research Group, which he feels resulted in him not being promoted to the position of DB-04 that is available in the DARPA Program Office in the Small Business Group.
The Agency dismissed the formal complaint on the grounds that this matter is identical to the matters raised in prior complaints, Agency Case Nos. ARREDSTON05SEP11056 and ARREDSTON05MAY08358.
The instant appeal followed. On appeal, Complainant asserts that he did not raise this claim in a prior complaint. Complainant states that the instant complaint is not about a DB-04 promotion. Rather, Complainant asserts that one of his job functions, involving a DARPA program, was taken from him and transferred or given to another building where he works.
In response, the Agency requests that we affirm its final decision dismissing Complainant's complaint. The Agency asserts that a named EEO Director (E1) asked Complainant questions regarding his complaint and that Complainant responded by referencing a 2006 settlement agreement.2 The Agency states that it previously found no breach with respect to this matter in Agency Case No. ARREDSTON05OCT11056.3
ANALYSIS AND FINDINGS
The Agency improperly dismissed the formal complaint on the grounds it raised the same matter in a prior complaint. The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. The Agency asserts that the instant matter is about a DB-04 promotion which was part of a 2006 settlement agreement. The record, however, does not clearly support this assertion. The record contains an Information Inquiry Summary form, DA Form 7509, for the instant matter. Therein, Complainant asserts that he was removed from a program based on his protected classes. In addition, Complainant stated that the program was passed onto a while male once it became successful. Complainant further asserts that "[h]e feels that he has been excluded and singled out from the program because he is a black male."
The record also contains a copy of the EEO Counselor's Report (Report) for the instant complaint. Therein, under Section V, Matter Giving Rise to Complaint, the Report provides "[Complainant] alleges that he has been excluded from a program...once it became successful." The Report provided that Complainant felt he had been excluded based on his protected classes. 4 EEO Counselor's Report at 2. The record also contains a copy of Complainant's formal complaint. Complainant's formal complaint contains several attached pages. While Complainant references that white engineers have been promoted to DB-04 positions, this reference appears to be background information. The crux of the instant complaint appears to involve Complainant's exclusion from a program that has now been passed onto a white male. Specifically, Complainant states that while he was not allowed to have a role in a designated program, a white male is now in charge of this program. In his formal complaint, the relief Complainant is seeking is to "have a [role] in [his] big program." Based on the foregoing, we find that the Agency failed to establish that the instant matter was raised in a prior complaint.
We REVERSE the Agency's final decision dismissing Complainant's complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant 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 (K0610)
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 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant 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. �� 1614.407 and 1614.408. 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 20, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 We note that the record before us does not contain Complainant's response to E1.
3 In Complainant v. Department of the Army, EEOC Appeal No. 0120093575 (April 14, 2011) req. for recons. den., EEOC Request No 0520110545 (Nov. 22, 2011), the Commission found no breach of the 2006 settlement agreement.
4 We note that the copy of the EEO Counselor's Report that was part of the complaint file submitted by the Agency did not contain the second page. Complainant submitted a complete copy of the EEO Counselor's Report which contained the second page.
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