01980094
03-30-1999
Alan K. Washabaugh, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Alan K. Washabaugh v. Department of Defense
01980094
March 30, 1999
Alan K. Washabaugh, )
Appellant, )
)
v. ) Appeal No. 01980094
) Agency No. DM-97-102
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
)
DECISION
The Commission finds that the agency's August 28, 1997 decision dismissing
appellant's complaint is not proper. The record shows that on September
26, 1996, appellant sought EEO counseling alleging that he had been
discriminated against on the basis of physical disability (seizures)
when he failed the government medical examination required for promotion
to WG-08 Motor Vehicle Operator. On February 18, 1997, appellant withdrew
his formal complaint of discrimination. By letter dated July 31, 1997,
appellant's attorney requested that the complaint "be reinstated for
further processing". Appellant's attorney also requested that the
"issue of the wrongful retraction of [appellant's] September 17, 1996
selection for promotion to WG-5703-08, Motor Vehicle Operator, which
was unlawfully based upon a disability" be included in such processing.
On August 28, 1997, the agency issued its final decision and found
that appellant's voluntary withdrawal "is considered as a final agency
decision on the substantive issues of this complaint".<1> Appellant
was also advised to contact an EEO counselor regarding the new issue.
On appeal, appellant's attorney claims that appellant was misled by the
agency regarding "the appropriate course of action to take to remedy
his situation".
The Commission finds that the agency's final decision is not proper.
The record shows that while the agency contends that appellant voluntarily
withdrew his formal complaint, he claims that he was misled by the agency.
We find that there is not sufficient evidence in the record to enable
the Commission to determine whether appellant was, in fact, misled by
the agency. Accordingly, the agency's final decision is VACATED and the
complaint is REMANDED for a supplemental investigation on the issue of
the voluntariness of the withdrawal of appellant's complaint.
ORDER
The agency is ORDERED to conduct a supplemental investigation regarding
appellant's claim that he was misled by agency officials. Within sixty
(60) days of the date this decision becomes final, the agency shall
contact appellant and allow him to provide a written statement providing
the names and titles of agency officials who allegedly misled him. The
agency will then provide affidavits from the appropriate agency officials.
If during the course of the supplemental investigation the agency finds
that appellant was not misled by agency officials, it shall then issue
a final decision dismissing the complaint and will provide appellant
with all relevant information concerning his appeal rights. However,
if during the course of its supplemental investigation the agency becomes
aware that appellant was in fact misled by agency officials it shall then
process the complaint pursuant to the provisions of 29 C.F.R.�1614.108.
A copy of the agency's letter of acknowledgment to appellant and/or a
copy of the final agency decision must be sent to the Compliance officer
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
March 30, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 EEOC Regulation 29 C.F.R.�1614.401(a) provides that a complainant may
appeal an agency's final decision, or the agency's dismissal of all or
a portion of a complaint.