01A12000_r
08-01-2002
Lee A. Black, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Contract Management Agency) Agency.
Lee A. Black v. Department of Defense (Defense Contract Management Agency)
01A12000
August 1, 2002
.
Lee A. Black,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Contract Management Agency)
Agency.
Appeal No. 01A12000
Agency No. ZA-01-001
DECISION
On October 25, 2000, complainant filed a formal EEO complaint wherein
he claimed that he was discriminated against on the bases of his age
(dob 8/31/39), race (African-American), sex (male), disability (chronic
back pain syndrome, heart disease, glucose intolerant, anxiety disorder)
when (1) on or about November 18, 1999, he learned that he had not
been referred, interviewed, or selected for the position of Supervisory
Acquisition Assessment Specialist, GS-1101-15, and (2) he was not selected
for the position of Equal Employment Manager, GS-0260-14.
In its decision dated January 19, 2001, the agency dismissed claim (1)
of the complaint pursuant to EEOC Regulation 29 C.F.R. �1614.107(a)(2),
on the grounds that complainant failed to initiate contact with an EEO
Counselor in a timely manner. The agency determined that complainant's
EEO contact on July 27, 2000, was more than 45 days after complainant
learned that he had not been referred, interviewed, or selected for the
Supervisory Acquisition Specialist position. With regard to claim (2),
the agency determined that this claim presented a conflict of interest
since the position at issue is in the EEO Office. The agency forwarded
claim (2) to another agency office for processing.
On 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. EEOC Regulation 29 C.F.R. �1614.107(b) provides that where
the agency believes that some but not all of the claims in a complaint
should be dismissed, the agency shall notify the complainant in writing
of its determination, the rationale for that determination and that those
claims will not be investigated, and shall place a copy of the notice
in the investigative file. A determination not to investigate certain
claims is reviewable by an Administrative Judge (AJ) if a hearing is
requested on the remainder of the complaint, but is not appealable until
final action is taken on the remainder of the complaint.
We find that the agency improperly issued a partial dismissal of a claim
from a complaint. The Commission has been informed by the agency that
claim (2) is still pending review before the agency and has not been the
subject of any agency decision or dismissal. Although the Commission does
not address in this decision whether there is a conflict of interest in
any particular agency office processing the instant complaint, we do find
that the agency should not have processed the claims of the complaint
separately by issuing a dismissal separate from the adjudication of
the entire complaint. Therefore, claim (1) is being remanded to the
agency for consolidation with the remainder of the complaint and further
processing in accordance with the revised regulations.
The agency's decision dismissing a portion of the complaint is VACATED.
This complaint is hereby REMANDED for further processing pursuant to
the Order below.
ORDER
The agency shall consolidate the remanded claim (claim (1)) with the
claim (claim (2)) that is still pending with the agency. The agency
shall notify complainant that the claims have been consolidated for
processing within 30 days of the date of this decision becomes final.
The agency shall then resume processing the complaint pursuant to 29
C.F.R. � 1614.106, et seq. A copy of the agency's letter to complainant
notifying complainant of the consolidation of the complaint must be sent
to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
August 1, 2002
__________________
Date