Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Human Resources Activity), Agency. Appeal No. 0120140929 Agency No. DCP-13-001 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 11, 2013, dismissing a formal 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. BACKGROUND During the period at issue, Complainant worked as a Program Manager at the Agency's facility in Arlington, Virginia. On February 22, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race and in reprisal for prior protected EEO activity. By letter dated March 29, 2013, the Agency accepted Complainant's complaint for investigation and determined that it was comprised of the following claim: On October 9, 2012, Complainant learned management failed to compensate her from May 16, 2011 to October 6, 2012 for duties she performed in the position of Leadership Development Specialist, GS-14. Following an investigation, Complainant requested a final decision. The Agency dismissed the formal complaint. The Agency found that this matter set forth the same claim as in Complainant's prior informal EEO complaint. Specifically, the Agency stated "the prior EEO activity, pre-complaint Case No. DCP-12-004 raised an identical claim arising from the same set of facts and circumstances as those raised in [the instant matter]...Pre-complaint intake form ...dated April 19, 2012, alleged that at the end of [Complainant's] temporary promotion as Leadership Development Specialist, GS-301-14, effective January 16, 2011 through May 15, 2011, [Complainant was] instructed to remain in the GS-14 Leadership Development Specialist position, performing GS-14 level work, while being returned to the GS-13 pay grade. The corrective action [Complainant] requested was to be permanently promoted to the GS-14 Leadership Development Specialist position and to receive compensation for work done since the end of the temporary promotion on May 15, 2011." The Agency noted that Complainant never filed a formal complaint regarding Agency Case No. DCP-12-004. The Agency further asserts that the instant formal complaint arises out of the same facts and circumstances as Agency Case No. DCP-12-004. Specifically, the Agency stated "[b]y the time [Complainant] filed DCP-13-001, [she] had received a permanent promotion Leadership Development Specialist, GS-14 effective October 7, 2012. As such, [Complainant] placed parameters around the time period for which she requested back pay and associated remedies, from the day after [her] temporary promotion ended, which is May 16, 2011, to the day before [she] received [her] permanent promotion, which is October 6, 2012." In addition, the Agency dismissed the instant complaint on the alternate grounds of untimely EEO Counselor contact. Specifically, the Agency stated "[Complainant] knew on July 20, 2012, that the Agency would not provide [her] with back pay, but [she] failed to initiate contact with an EEO staff member until October 17, 2012, which was 80 days after [she] should have had a reasonable suspicion of the alleged discriminatory act." The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that an agency shall dismiss a complaint that "states the same claim that is pending before or has been decided by the agency or Commission." This provision applies only in situations when the claim was stated in a previous formal EEO complaint; it does not apply to claims previously raised at the informal stage of the EEO process. See Complainant v. U.S. Postal Serv., EEOC Request No. 0520140201 (June 10, 2014) (The Commission has held that it is error to dismiss a claim on the grounds that a claim was previously raised when it was raised in an informal complaint); Francis v. U.S. Postal Serv., EEOC Appeal No. 01A20240 (Dec. 9, 2002) (if not formal complaint filed, "not possible to have a prior complaint pending or decided" on the same matter). There is no evidence that Complainant ever filed a formal complaint with respect to Agency Case No. DCP-12-004. However, the Commission has held that "a complainant who receives counseling on an allegation, but does not go forward with a formal complaint on the allegation is deemed to have abandoned it and consequently, cannot raise it in another complaint." Small v. U.S. Postal Serv., EEOC Request No. 05980289 (July 16, 1999). The record reflects Complainant first raised the matter of not being compensated at a GS-14 level while performing the duties for the Leadership Development Specialist position in Agency Case No. DCP-12-004. The record contains Pre-complaint Intake Form for Agency Case No. DCP-12-004. Therein, Complainant was seeking to be promoted to the GS-14 position and to receive compensation for the work done since May 16, 2011 to the present. Complainant did not file a formal complaint in Agency Case No. DCP-12-004.1 We note that the EEO Counselor's Report for the instant complaint, Agency Case No. DCP-13-001, provides that Complainant's claim is that management failed to compensate her for duties she performed in the position of a Leadership Development Specialist, GS-14. The EEO Counselor's Report for DCP-13-001 further provides that Complainant is seeking, in pertinent part, back pay from May 16, 2011 to October 6, 2012. Based on the foregoing, we agree with the Agency that the matters raised in Agency Case DCP-12-004 at the informal level and the instant formal complaint are the same (compensation for the time Complainant served in the GS-14 Leadership Development Specialist position). Based on the foregoing, we find that Complainant abandoned this claim when she did not file a formal complaint for Agency Case No. DCP-12-004. For the reasons stated herein, we AFFIRM the Agency's final decision dismissing Complainant's complaint.2 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 January 6, 2015 __________________ Date 1 In an affidavit, Complainant asserts that she did not "drop" the complaint for Agency Case No. DCP-12-004. She asserts that she was informed that a formal complaint would be deemed untimely and would be "rejected." She further states that she then filed with the Office of Special Counsel. To the extent Complainant asserts that she did not file a formal complaint for Agency Case No. DCP-12-004 because she was informed it would not be timely and would be dismissed, we note that if Complainant filed a formal complaint for Agency Case No. DCP-12-004 and if the Agency dismissed it on procedural grounds, Complainant would have had the right to file an appeal with the Commission's Office of Federal Operations pursuant to Commission regulations. 29 C.F.R. § 1614.401(a). 2 Because we affirm the Agency's final decision for the reasons set forth herein, we need not address the Agency's alternate grounds for dismissal. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140929 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120140929