0120100158
02-10-2012
Danny R. Strand, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Danny R. Strand,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120100158
Agency No. 09-62204-02234
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
August 31, 2009 decision, 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. Upon review, the Commission finds that Complainant's
complaint was properly dismissed.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Director of the Security and Emergency Services Department at the Marine
Corps Logistics Base in Barstow, California (MCLB-Barstow). On July 7,
2006, Complainant was offered the position of the Director of Security
and Emergency Services with a Superior Qualifications Appointment at the
GS-14, Step 4 pay level. On July 9, 2006, Complainant accepted the offer
of employment. On July 14, 2006, Complainant was made aware that the
Human Resources Service Center-Southwest (HRSC-SW) denied his Superior
Qualification Appointment because the Civilian Human Resources Office
did not submit his Superior Qualifications Appointment justification
five days before his entry on duty date as required by HRSC-SW standard
operating procedures.
Complainant initially contacted an EEO counselor on July 10, 2006
regarding the matter. On September 18, 2007, Complainant withdrew
his informal EEO complaint stating that the Commanding Officer (CO)
was doing everything he could to resolve the matter. On January 26,
2009, Complainant received notice of a letter from the CO stating
that Complainant’s request for retroactive Superior Qualification pay
setting was denied. After receiving the letter, Complainant contacted the
Agency’s EEO Office on February 11, 2009 to reinitiate EEO counseling.
On July 12, 2009, Complainant filed an EEO complaint alleging that the
Agency subjected him to discrimination on the bases of race (Caucasian),
sex (male), color (White), and age (51) when, on July 14, 2006, he
learned that the Human Resources Service Center-Southwest (HRSC-SW)
denied his Superior Qualifications Appointment and set his pay level at
GS-14, Step 1.
On August 31, 2009, the Agency dismissed the complaint pursuant to 29
C.F.R. § 1614.105(a)(1) for Complainant's failure to timely contact an
EEO Counselor within the 45-day time limitation period. The Agency’s
dismissal also addressed Complainant’s issues with the processing of
his EEO complaint and dismissed those claims pursuant to 29 C.F.R. §�
�1614.107(a)(8) for alleging dissatisfaction with the processing of a
prior complaint.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that he timely filed this instant complaint
and that his request for retroactive superior qualification pay setting
was mishandled by Marine Corps Human Resources Officers ranging from the
Marine Corps Headquarters to the Human Resources Office at MCLB-Barstow.
Additionally, Complainant asserts, for the first time, that the Commanding
Officer asked him to drop his EEO complaint in 2007 and that he has
been subjected to a hostile work environment during his pursuit of this
matter.1 Accordingly, Complainant requests that the Commission reverse
the Agency’s dismissal.
ANALYSIS AND FINDINGS
The Commission has found that where a complainant “knowingly and
voluntarily withdrew his complaint …. the Commission considers the
matter to have been finally abandoned.” See Tellez v. Dep’t of
Transp., EEOC Request No. 05930805 (Feb. 25, 1994). The Commission has
held that a complainant may not request reinstatement of an informal
complaint, with the exception of a complaint withdrawn pursuant
to a settlement agreement, unless there is a showing of coercion.
Allen v. Dep’t of Defense, EEOC Request No. 05940168 (May 25, 1995).
In addition, the dismissal of a complaint is improper if the Agency's
action in misleading or misinforming the complainant resulted in
the dismissal. Perry v. U.S. Postal Serv., EEOC Appeal No. 01A45685
(Oct. 17, 2005).
The record in the instant matter reveals that Complainant had previously
raised the issue of the denial of his Superior Qualification Appointment
pay in a previous complaint (Agency No. 07-62204-02460), which he
voluntarily withdrew on September 18, 2007. On appeal, Complainant
asserts, for the first time, that he withdrew this prior complaint
because the Commanding Officer asked him to withdraw his complaint.
Complainant implies that he was pressured, claiming that the Commanding
Officer told him that “an EEO is not the way to solve this problem, you
could use an Administrative Grievance.” The record reveals, however,
that in his 2007 withdrawal notice, Complainant stated that “[Commanding
Officer] is doing everything in his power to correct the injustice
done” and that he had “trust and confidence in [Commanding Officer]
and believes he will be able...to correct this injustice.” In a March
31, 2008 correspondence to the EEO Counselor, Complainant reiterated
his trust and belief that his Commanding Officer was an honorable man
doing everything that he could to resolve Complainant’s issue.
Complainant's assertion in his appeal contradicting his earlier
statements about his Commanding Officer’s actions fails to show that
Complainant’s withdrawal was the result of misinformation or misleading
conduct by the Agency. Furthermore, Complainant has presented no
persuasive arguments or evidence of coercion warranting the reactivation
of his 2007 complaint. Accordingly, the Agency's decision to dismiss
the complaint is hereby 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 (Nov. 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:
______________________________ February
10, 2012
Carlton M. Hadden, Director Date
Office of Federal Operations
1 On appeal, Complainant alleges additional discriminatory incidents,
including harassment. Complainant is advised to initiate contact
with an EEO Counselor if he wishes to pursue additional allegations.
The Commission has held that new claims may not be raised for the first
time on appeal. See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal
No. 01A40449 (Apr. 22, 2004).
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0120100158
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013