01A05393_r
05-31-2001
John Patcyk, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
John Patcyk v. Department of the Army
01A05393
May 31, 2001
.
John Patcyk,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A05393
Agency No. CEGBFO-0005-A0-100
DECISION
On August 18, 2000, complainant timely filed an appeal with the
Commission from a final agency decision dismissing his complaint of
unlawful discrimination on the bases of age, disability, and in reprisal
for prior protected activity. In his complaint, complainant alleged
that the agency discriminated against him when it denied him training,
promotion to a GS-9 grade, and an appointment to a permanent position.
In its final decision, the agency dismissed complainant's
complaint. Specifically, the agency concluded that the matters in the
instant complaint were stated in a previous complaint that the agency
dismissed on March 3, 2000.
EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides that an allegation
or a complaint should be dismissed if it states the same claim that is
pending or has already been decided by the agency or Commission. The
Commission has interpreted this regulation to require that the complaint
must set forth "identical matters" raised in a previous complaint
filed by the same complainant, in order for the subsequent complaint
to be rejected. Terhune v. United States Postal Service, EEOC Request
No. 05950907 (July 18, 1997).
Upon review, the Commission finds that the agency properly dismissed
the complaint. The record reflects that on January 22, 2000, complainant
filed a complaint (Agency No. CEGBFO-0000-A0-010). Therein, he alleged
that the agency discriminated against him on the bases of sex, disability,
and in reprisal for prior protected activity when it denied him training
and failed to hire him as a permanent employee. Likewise, the instant
complaint concerns a claim of discrimination based upon sex, reprisal,
and disability with regard to the agency's alleged denial of training
and an appointment to a permanent position. While the instant complaint
contains an elaboration of matters contained in the initial complaint,
both complaints involve the same agency actions, same bases, and the
same surrounding facts. Accordingly, the Commission concludes that the
claim raised in the instant complaint was raised in a prior complaint.
Moreover, we reject complainant's assertion on appeal that the manner
in which the instant complaint was drafted reflected agency bias, as an
EEO official purportedly helped complainant word the complaint so as to
result in its dismissal. The record reflects that the matter raised
in the instant compliant contains complainant's signature, and we are
therefore unpersuaded by his assertion as identified above. Accordingly,
the agency's dismissal of complainant's complaint is AFFIRMED for the
reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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), 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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 31, 2001
__________________
Date