01990950
02-07-2000
Jackie R. Parker, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Jackie R. Parker, )
Complainant, )
)
v. ) Appeal No. 01990950
) Agency No. 98-00181-012
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
On November 9, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on
October 24, 1998, pertaining to his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1> In his complaint, complainant
alleged that he was subjected to discrimination on the bases of race
(African-American) and in reprisal for prior EEO activity when:
Complainant was not promoted to the position of Electrical Engineering
Technician, GS-0801-11, as verbally promised in 1991;
Complainant was suppressed by management;
Complainant was not allowed to work a special shift; and
Complainant was harassed and negative remarks were made about his work
performance.
The agency dismissed claim (1) for stating the same claim raised
in Agency No. 97-00181-011. The agency also dismissed claims (2) -
(4) for alleging matters not raised with an EEO Counselor. The FAD
instructed complainant to contact a counselor within fifteen (15) days
if he wished to pursue claims (2) - (4).
On appeal, the agency explains that there is no Counselor's Report
in the record because complainant never spoke with a counselor.
The agency contends that complainant contacted a counselor regarding
his prior complaint, and filed a formal complaint on September 2, 1997.
The agency argues that complainant then filed the present formal complaint
on August 28, 1998, without first contacting a counselor.
In his formal complaint, dated August 21, 1998, complainant alleged that
claim (1) was improperly identified as a promotion, when it actually
involved a personnel action. Complainant also claimed that certain
management officials were engaged in a conspiracy to suppress him.
Complainant also asserted that a management official not involved with
his personnel action refused to allow complainant to work a special
shift necessary to complete a training program. Complainant also argues
that another agency official harassed him by making derogatory remarks
regarding his work performance.
To the extent that complainant alleges he is being suppressed, the
Commission finds that complainant is expounding on his other claims.
Therefore, claim (2) will not be considered separate from the other
claims.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides that an agency may dismiss
a matter that is pending before or has been decided by the agency or
Commission. In Parker v. Department of the Navy, EEOC Appeal No. 01990665
(Dec. 10, 1999), complainant alleged that he was not promoted to a
GS-0802-11 Electrical Engineering position, as verbally promised in 1991.
The Commission finds that claim (1) is identical to the claim raised in
Appeal No. 01990665. Accordingly, the agency's dismissal of claim (1)
is AFFIRMED.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(2)) states, in pertinent part, that an
agency shall dismiss a complaint which raises a matter that has not been
brought to the attention of an EEO Counselor, and is not like or related
to a matter on which the complainant has received counseling. A later
claim or complaint is "like or related" to the original complaint if the
later claim or complaint adds to or clarifies the original complaint and
could have reasonably been expected to grow out of the original complaint
during the investigation. See Scher v. United States Postal Service,
EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal
Service, EEOC Request No. 05891068 (Mar. 8, 1990).
There is no evidence that complainant raised claims (3) or (4) with an
EEO Counselor. In his formal complaint, complainant acknowledges that
the official responsible for claim (3) is not involved in defeating his
attempts to gain a GS-11 position. Therefore, this matter is not like or
related to any matter for which complainant received counseling in the
present complaint, or in Appeal No. 01990665. If complainant wishes to
pursue this claim, he should contact an EEO Counselor within fifteen days.
Accordingly, the agency's dismissal of claim (3) for raising a matter
not raised with an EEO Counselor is AFFIRMED.
Claim (4), also is not like or related to complainant's allegation that
he is being kept out of a GS-11 position. Claim (4) involves harassment
from different officials from those responsible for failing to promote
him that occurred years after the incidents for which complainant sought
counseling. Further, claim (4) does not clarify or reasonably grow from
the matters counseled. Therefore, the agency's dismissal was proper.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must 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
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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 (Z1199)
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:
February 7, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant 1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.